In one of the more bizarre occurrences during an already unusual Supreme Court term, the justices have requested that both sides in the well-publicized birth control case Zubik v. Burwell file supplemental briefs to attempt a resolution before a final decision is handed down.
In the order issued on March 29, the justices directed the parties to contemplate feasible ways that contraceptive care can be made available to employees of religious non-profit organizations in a way that doesn’t require their involvement.
The Affordable Care Act requires that most employers provide health insurance to their employees, and health insurance companies to provide contraceptive care to women at no cost. If a religious nonprofit objects to this provision, they can file a form with the federal government and the employees can receive contraception directly from the insurance company. And this is where the problem is. The nonprofits argue that merely filing this form is in direct contradiction to their beliefs, and therefore a violation of their religious freedom.
The Court encouraged each side to consider creative options for avoiding any nonprofit interaction, and even provided a legitimate possible solution:
“The parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds…
“At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”
By issuing this order, the Court may already be admitting that as it stands, they are deadlocked at four against four, with no reasonable hope for any resolution before the decision is handed down this summer. By doing so, they are offering a chance for the nonprofits to achieve a compromise amenable to their religious beliefs. A deadlock would mean that the lower federal court’s ruling against the nonprofits would stand, and that any decision (if one is made at all) would not be controlling law in the rest of the country.
Both sides have until April 20 to file their supplemental briefs. If a compromise cannot be reached and the Court returns with the expected tie, the parties will have to wait at least another year for the matter to be resolved.
As expected, the lack of a 9th Justice is already causing problems, and we have many months until the end of the judicial session.
Featured image via SonjaSees, available under a Creative Commons 2.0 Attribution-Noncommercial-Sharealike license.
