About that Order for Supplemental Briefing in Zubik v. Burwell

Photo: Pen & Parchment

Flickr/Creative Commons—Christa Uymatiao

By Gregory M. Lipper

This afternoon the Supreme Court requested supplemental briefing in Zubik v. Burwell and the other challenges to the contraceptive-coverage accommodation, as follows: “The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

And in so doing, the Court offered a proposal of its own (I’ve added paragraph breaks and numbering):

[1] For example, 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.

[2] Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.

[3] 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.

Although it’s foolish to read tea leaves, read them I shall:

1. I think that this is a decent sign for the government. It was clear from last week’s argument that four Justices would vote to uphold the accommodation; but the potential fifth vote, Justice Kennedy, seemed to be skeptical of the government’s arguments. This order suggests that at least five Justices (including Justice Kennedy) seem to think that the challengers’ proposed alternatives to the accommodation (create separate, contraceptive-only policies and require women to seek them out; expand Title X clinics; and other Rube Goldberg-schemes) harm women by preventing them from receiving seamless and convenient coverage. If the Court thought that those other alternatives were sufficient, then it wouldn’t be looking for a way to ensure that women retained accommodation-style seamless coverage.

2. This order also puts the religious objectors in even more of a bind. If they respond that even the Court’s proposal substantially burdens their religious exercise, then it becomes even clearer that they object to the independent conduct of third parties; under the Court’s proposal, objectors wouldn’t have to do anything other than tell their insurance companies what coverage they want and what coverage they don’t want. And so if the objectors oppose even this alternative, then the government can throw up its hands and say, “We told you that they’re actually trying to interfere with third parties and prevent women from getting seamless coverage through any means.”

3. It’s also important to remember that whatever rules apply to the nonprofit objectors in these cases will apply to objecting for-profit corporations, including Hobby Lobby, who have been offered the same accommodation as nonprofit organizations. So we’re talking multiple tens of thousands of employees.

4. Finally, although this order creates a bit more reason to be optimistic about the accommodation, it’s still a sign of how far we have to go before reproductive care is treated like other forms of care. It’s virtually impossible to imagine that the Court would be bending over backwards to facilitate evolving objections to the provision of coverage for vaccines, blood-pressure medicine, colonoscopies, or any other form of medical care used regularly by, say, older men.

(For more on Zubik, check out my summary of the oral argument.)

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.

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6 thoughts on “About that Order for Supplemental Briefing in Zubik v. Burwell

  1. Greg, you probably watch the Court more closely than I do so I will be curious on your thoughts, but: I cannot think of another time when the Court has written such a long, detailed, request for further briefing to essentially float to the lawyers and world “here is one way we could resolve this case, what say you?” Am I wrong to think this is pretty unprecedented?

    • Requests for supplemental briefing is not uncommon, but I don’t recall anything this detailed either, let alone something involving a proposed solution that neither party has floated. The one explanation, beyond really trying to avoid a 4-4 split, is that RFRA itself requires consideration of different alternatives—so this, although still unusual for a post-argument order, is the type of hypothetical that the Court could have raised at argument in evaluating the possible less-restrictive alternatives.

  2. As usual, totally awesome post! Don’t you think the objectors will have to say that even this option doesn’t satisfy them, though, since (by their own arguments so far) they would still be complicit by telling the insurance companies what they won’t pay for (giving the insurer notice that it now has to take steps to provide access) and also by allowing their insurance plans to be “hijacked”?

    • I think they are in an awkward position. I actually asked a Becket Fund lawyer on Twitter whether they would accept the proposal, and I got crickets in response :-)

      1. If they accept the proposal, then they are forced to accept something that is very, very close to the existing accommodation – although I suppose they can cut their losses and claim victory over the Obama administration. But I don’t see how it avoids the “hijacking” problem, at least given the unusual way that they have defined “hijacking.”

      2. But if they don’t accept the proposal, then it becomes clear that they are seeking to block third-party conduct alone.

      So I think they will probably try to split the difference and propose something that is different than what SCOTUS asked about but that is also different than what they have proposed thus far.

  3. How close are they to establishing a state religion in this case? By discussing “sin” and “complicity”, it seems that the court is out of bounds. I’m quite worried.

  4. The one explanation, beyond really trying to avoid a 4-4 split, is that RFRA itself requires consideration of different alternatives—so this, although still unusual for a post-argument order, is the type of hypothetical that the Court could have raised at argument in evaluating the possible less-restrictive alternatives.

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