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Supreme Court Looking For Way To Work Around 4-4 Tie In Obamacare Birth Control Cases

Birth Control Mandate

Late yesterday, the Supreme Court issued a letter in the cases dealing with religious objections to the PPACA’s birth control mandate that appears designed to find a way to avoid a tie vote that would result in potentially inconsistent law across the country:

WASHINGTON — The Supreme Court on Tuesday issued an unusual order indicating that the justices are trying to avoid a 4-to-4 deadlock in a case pitting religious freedom against access to contraception.

The order, which was unsigned, directed the parties to file supplemental briefs in Zubik v. Burwell, No. 14-1418, which was argued on Wednesday. The case was brought by religious groups that object to providing insurance coverage for contraception to their female workers.

Women are guaranteed access to that coverage under the Affordable Care Act. After the religious groups said paying for such insurance made them complicit in sin, the Obama administration offered the groups an accommodation: If they object in writing and provide information about their insurance plans, the administration said, insurance companies and the government will pay for the coverage.

At Wednesday’s arguments, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.

Tuesday’s order asked the parties to “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.”

The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.

“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,” the order said. “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.”

It is not particularly unusual for the court to ask for supplemental briefs, but Tuesday’s order was exceptionally elaborate and seemed to envision new regulations from the Department of Health and Human Services. It was almost certainly prompted, at least in part, by a desire to avoid a tie, which would automatically affirm the four appeals court decisions under review, all of which upheld the existing accommodation.

Lyle Denniston comments:

From the specific wording of the new requirement, the Court appeared to have accepted — at least tentatively and maybe only as the basis for further exploration — the view of the non-profit hospitals, schools, and charities that any step they take would involve them in a violation of their religious objections to some or all contraceptive methods, but also to have accepted — again, perhaps only tentatively and for further analysis — the government’s view that it had to work through those non-profits’ existing health insurers to assure cost-free contraceptive coverage to their female employees of child-bearing age.

If the lawyers on both sides cannot come up with ways to reconcile those two perceptions, the Court may have to move forward to decide the seven cases just as they came to the Court and as they stood for last week’s oral argument.  One of the most significant developments at that hearing was that a number of Justices (though maybe not a majority) had seemed to accept the non-profits’ claim that the government would be “hijacking” those institutions’ own health plans for employees or students, which would also involve them in providing access to birth-control methods and devices to which they object.

The non-profits’ lawyers argued that the government had a duty, under the federal Religious Freedom Restoration Act, to find ways to provide access to contraceptives entirely independently of those non-profits and their existing health plans.  That was the argument that prompted a number of Justices to comment about the “hijacking” that might occur.  The new order seemed to center on that.

In previous, temporary orders the Court had issued as this controversy had developed, before the Court took on a full-scale review, the Justices had required the non-profits to provide some specific notice that they do object to the birth-control mandate based on their beliefs, and had required such notice either to the providers of their insurance plans or to government agencies.

The new order thus seemed aimed at cutting the non-profits free from any notice requirement — to anyone.  But it also seemed to be based on the premise that a way might be worked out for the providers of existing health coverage for the non-profits to set up something new, so that access would not be forthcoming through the non-profits’ existing health plan.

Although the government had told the Court that it could not provide contraceptive coverage for the employees of these institutions without going back to Congress for legislation amending the ACA birth-control mandate, the new order appeared to accept that as a legal barrier, but to at least imply that new arrangements could be made between the government and health insurers.

The order thus represented a significant break from the Court’s customary approach of taking a controversy as it finds it, and deciding its legality based only on those terms.  What the two sides may say in response to the new filing requirement remains to be seen, but it does suggest that they might have to craft new sets of contractual agreements or new government regulations under the ACA — approaches that, perhaps, might be implemented without new action by Congress.

As I noted after last week’s oral arguments, the most likely outcome in these cases appeared based on those arguments to be a 4-4 tie that would leave the holdings below in each of the individual cases standing. While this would mean in the majority of cases that the claims of most of the religious-based employers that even the act of providing notice that they have a religious objection to birth control is somehow a violation of their religious liberty would be rejected, in at least one case it would mean that the claim was accepted and that a split among the Circuit Courts of Appeal would be allowed to stand. One way for the the Court to deal with this problem, of course, would be to set the case for reargument during the October 2016  Term, but that’s rather difficult at the moment since it is unclear when a new Justice may actually take the bench. At the very least, it seems unlikely that this will happen before the new term begins in October, and may not take place until well into 2017 if the GOP is successful in its “No hearings, no votes” strategy. Given that, simply punting the case to the next term with an uncertain hearing date is probably something the Justices are disinclined to do.

As for this letter from the Court, it’s not entirely unusual for the Court to ask for supplemental briefing on limited issues in a particular cases. It doesn’t happen in every case, obviously, but there have been other occasions when parties have been asked to brief some point not touched on in the original briefs that only became apparent during oral argument or during the Court’s post-argument conference. What makes this letter somewhat unusual is that it seems to be suggesting a way to settle these cases in a way that would make the Court’s ruling largely unnecessary. Assuming the PPACA allowed it and the parties agreed, after all, there would seemingly be no reason why something along the lines of what the Court is suggesting here could not be implemented via a new round of regulations from the Department of Health and Human Services. At least in the short term, that would seemingly make the cases presently before the Court moot and avoid the need for the Court to rule at all. At the very least, it seems clear from this letter that the Justices are looking for a way to avoid a 4-4 tie, and the national inconsistency in the law that would result. Whether it will work is another question.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    At the very least, it seems unlikely that this will happen before the new term begins in October, and may not take place until well into 2017 if the GOP is successful in its “No hearings, no votes” strategy. Given that, simply punting the case to the next term with an uncertain hearing date is probably something the Justices are disinclined to do.

    Well, since Justice Kennedy has, through his comments during oral arguments, indicated that he’s leaning to the favor of the religious parties I’m thinking that there is no compromise or work around to be had.

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  2. Tony W says:

    The court’s best hope is that another justice unexpectedly resigns.

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  3. HarvardLaw92 says:

    From a strategic standpoint, it is preferable that the court deadlocks and preserves the circuit split. It’ll give us a better basis for reintroducing the issue and putting a stop to this nonsense after November.

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  4. KM says:

    What makes this letter somewhat unusual is that it seems to be suggesting a way to settle these cases in a way that would make the Court’s ruling largely unnecessary. Assuming the PPACA allowed it and the parties agreed, after all, there would seemingly be no reason why something along the lines of what the Court is suggesting here could not be implemented via a new round of regulations from the Department of Health and Human Services.

    Considering the logic of this lawsuit is filling out a form = burdensome sinful support for BC, why would filling out the paperwork to comply with this order be any different? Isn’t formally writing out a proposal to tell people you don’t want to provide BC the same as, you know, the same as the form for telling them you opt-out? The Sisters need to collaborate with the lawyers to come up with the acceptable plan so doesn’t that make their whole organization complicit in condoning sin?

    Please tell me one of the Justices asks this question. Please. I wanna see this logic bomb go off in court and Kennedy work his way around it. Masterful trolling, SC.

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  5. Moosebreath says:

    @KM:

    “Please. I wanna see this logic bomb go off in court and Kennedy work his way around it. Masterful trolling, SC.”

    Even better, since it turns around the position advocated by the Randy Barnetts of the world during the initial Obamacare case, that it was up to the government to come up with a test to determine the extent of the government’s Commerce Clause power. They can hardly complain now that the Supremes are asking a party to do their work for them now.

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  6. C. Clavin says:

    mired in controversy

    The only thing controversial is the zealots understanding of religious freedom…hint: it’s not the freedom to impose your beliefs on others.

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  7. sam says:

    Adding to KM’s point, I’ve thought that the objecting parties might still balk even if freed from the notification requirement by arguing that the insurance company must depend on them for the names of the women they employ. And thus, by their lights, they would still be complicit.

    I should say that I think if they did make this argument, they would showing themselves to be utterly unreasonable.

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  8. bookdragon says:

    I think the response to the request should be interesting. The SC is basically saying “Ok, so is there _any_ accommodation you’d consider acceptable that would let women working for you receive contraceptives?”

    The question was basically asked during oral arguments and the lawyer for the religious groups didn’t have an answer. beyond “well, we’d have to see what alternative they came up with….”

    So now the SC is asking them directly what alternative they’d accept. If the answer is nothing, then I think the 3 women on the court should beat Kennedy over the head with the response paper until he gives in and joins for a 5-3 ruling against.

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  9. C. Clavin says:

    The case was brought by religious groups that object to providing insurance coverage for contraception to their female workers. Women are guaranteed access to that coverage under the Affordable Care Act. After the religious groups said paying for such insurance made them complicit in sin.

    Is contraception discussed in the bible? Who decided it is a sin? Was Thou shall not use contraception in that third tablet of commandments that Mel Brooks dropped?
    https://www.youtube.com/watch?v=I48hr8HhDv0
    I just do not understand why people are being held hostage for some made-up mumbo-jumbo. Give me some factual basis…sure. But fiction as a basis for policy is retarded.

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  10. OzarkHillbilly says:

    This is all about who’s rights are more important: Women’s or anybody else’s and we all know what Roberts, Thomas, and Alito think of women.

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  11. gVOR08 says:

    @C. Clavin:

    it’s not the freedom to impose your beliefs on others

    Read Lakoff. That is exactly what religious freedom means to them. He wrote a whole book Whose Freedom on what “freedom” means to conservatives as opposed to what you and Funk and Wagnalls think it means.

    I keep saying – For conservatives, nothing is about what it’s about. Freedom is, for them, all about duty and coercion.

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  12. grumpy realist says:

    It’s like those bloody Ultra-Orthodox who suggest that women walk on the other side of the street and wear modest clothing. I want to say: if not seeing women wearing sexyclothes is all that important, here’s a blindfold for you and a cane. Now piss off.

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  13. JKB says:

    …cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

    Where is the money coming from to pay for this “cost-free” contraceptive coverage?

    Perhaps that is what the justices expect to be addressed?

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  14. gVOR08 says:

    @OzarkHillbilly:

    This is all about who’s rights are more important: Women’s or anybody else’s.

    Thank you for another example of my thesis – For conservatives, nothing is about what it’s about.

    @C. Clavin: It strikes me as far from irrelevant that five of the eight Justices are Catholic. Although I expect Sotomayor is able, a la Kennedy (John F. not Anthony), to separate her personal beliefs from her public duty.

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  15. KM says:

    @JKB:

    Where is the money coming from to pay for this “cost-free” contraceptive coverage?

    The insurance company and they’re glad to pay it rather then rack up the charges pregnancy and childbirth bring. From a accounting point of view, it’s a slam dunk decision.

    If your point was heading towards the “insurance is a communal kiddie pool and my special thimble full of water must never mix in” BS, kindly don’t. They’re OK with sharing air, water and working space with sinners employees who use BC; the idea that filthy lucre is the communal step too far says more about them then they think.

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  16. gVOR08 says:

    @KM:

    …the idea that filthy lucre is the communal step too far says more about them then they think.

    I’m gonna up vote that again when I get home.

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  17. wr says:

    @OzarkHillbilly: “This is all about who’s rights are more important: Women’s or anybody else’s and we all know what Roberts, Thomas, and Alito think of women.”

    Just wait until President Trump puts Gary Busey on the court.

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  18. steve s says:

    …I might have to support Justice Busey.

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  19. grumpy realist says:

    Whee. Trump just came out with overturning Roe v. Wade and punishing women for having “illegal abortions.”

    Get the popcorn, guys.

    (pulls up chair.)

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  20. bill says:

    @JKB: you know, “free stuff” just appears in liberal lala land…..and everyone deserves it.

    the fed gov’t has no right to force anyone to cover anything sexual, from condoms/pills/iuds/viagra /sex change bs/etc. – sex is not a “right” as any convicted rapist will attest…..

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  21. grumpy realist says:

    @bill: Considering that for many many years viagra was considered something “standard” but birth control was considered something “extra” for women, I think you might want to be a bit more humble. We’re simply demanding the same sort of coverage that you guys had that you took for granted.

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  22. Monala says:

    @JKB: from the money the insurance companies save by not having to cover an unplanned pregnancy. Just like the insurance companies are happy to comply with the free preventive care measures of the ACA, since it saves money down the line. Since this has already been thoroughly explained to you in a prior post, you’re an idiot.

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  23. stonetools says:

    This problem will be settled next year, when President Clinton appoints a liberal to the Supreme Court to fill Scalia’s seat with the advice and consent of a Democratic majority Senate . Which liberal judge it will be is irrelevant. What will matter is that they will have a 21st century understanding of women’s biology and women’s rights, and will rule accordingly on the next test case on this issue.
    Remember when Justice Alito was saying that the “narrow” Hobby Lobby ruling would not lead to a parade of new litigation on religious rights issues? I bet Ginsburg will be using that quote as she writes the future 5-4 decision overturning that case.

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  24. mike shupp says:

    @JKB:

    “Where is the money coming from to pay for this “cost-free” contraceptive coverage?”

    Isn’t this the Free Enterprise system at work?

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  25. Blue Galangal says:

    @bill: I think everything being missed here is the bottom line, which is that insurance is provided to an employee by an employer AS PART OF HIS OR HER COMPENSATION PACKAGE. Coverage for birth control, just as coverage for any other part of the health care package, is part of the compensation the worker receives. I have never understood this adherence to the “free” mantra. It’s not free. Health insurance coverage is part of our paycheck. If you give a woman money for working for you and she then goes and purchases birth control with that money (or an abortion, for that matter), how is that any different, morally, for either Hobby Lobby or the Little Sisters? In both scenarios, they have provided female employees with compensation which she then spent on something they are morally against. But since in one case it is not actual dollar bills, that’s where the problem is? Health insurance coverage and wages are exactly the same thing when they are part of an employee’s overall compensation. No one is getting anything for “free.”

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  26. JKB says:

    @mike shupp: Isn’t this the Free Enterprise system at work?

    Government interventionism is nothing close to free enterprise. In this case, we haven’t had free enterprise in the US for over a century. At best, as economist Sumner Schlicter called it in the 1940s, we have “government-guided enterprise”, but that didn’t hold and the creeping of interventionism toward socialism in the last 60 years has put us closer to state-strangled enterprise.

    Finally, we still have to speak of interventionism. According to a widespread opinion, there is, midway between socialism and capitalism, a third possibility of social organization: the system of private property regulated, controlled, and guided by isolated authoritarian decrees (acts of intervention).

    Mises, Ludwig von. Liberalism (p. 63).

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  27. JKB says:

    @Blue Galangal: Health insurance coverage and wages are exactly the same thing when they are part of an employee’s overall compensation.

    Perhaps in a Progressive’s mind, where controlling how someone spends their hard earned employee compensation is the same as the employee having the freedom to choose how they allocate their earnings to satisfy their wants and needs.

    See with cash, the employee, having exchanged their time and effort for that cash, are then as free people, able to choose how and when they spend their earnings. They can spend earnings on birth control, sugary sodas, salty foods, gas-guzzling cars, whatever. But with Obamacare, the government has decided that a good portion of their compensation will be as health insurance and “free stuff” health products, such as birth control. In the latter, the employer must select and pay for items that violate their religious faith.

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  28. JKB says:

    @KM: The insurance company and they’re glad to pay it rather then rack up the charges pregnancy and childbirth bring. From a accounting point of view, it’s a slam dunk decision.

    So why the government mandate?

    If it is a slam dunk for the insurance companies, why wasn’t “free birth control” already a bonus include in all health insurance policies for women of child bearing age?

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  29. KM says:

    @JKB:

    So why the government mandate?

    Can’t believe I’m feeding the troll by spelling out the obvious but here’s my good deed for the day…..

    Because the insurance company would let you rot in a ditch and pay for the privilege after charging the daylights out of you with your policy. Face it, if the choice was (1) pay for pre-natal/birth (2) pay for BC or (3) say F-you DENIED it’s not rocket science they’d gleefully pick (3). Insurance companies can and will screw you then run off with your money if given the chance – this is a fact of life for many Americans. When the government steps in and says pick (1) or (2), the choice will be (2) as it’s what will save them the most money.

    Frankly, if they could, they’d never pay out a dime. It’s not a bonus because greedy people don’t give bonuses. They do, however, do cost-saving measures and when told they have to provide actual value for insurancee dollars spent, went with BC. Insurance companies have been fleecing people for YEARS with cheap “insurance” that didn’t pay out when needed but certainly drained the bank accounts of the payers. Now that they have to pony up, they looked at their sheets, made a decision based off the numbers and found no prob with BC. It’s one of the better deals they got out of the ACA – it could have been everything related to childbirth for free ($$$$$$!!)

    Counter: Why do you have a problem with it when the insurance companies don’t? I don’t see Blue Cross or Humana filing in the Supreme Court to not have to provide BC along with the Sisters. It’s their mandate so why are you whining?

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  30. Blue Galangal says:

    @JKB:

    Compensation in return for labor is the same whether it’s health insurance or dollar bills. I’m not sure why you’re choosing this particular hill to die on, but there is no difference, morally speaking, between the health insurance plan my employer provides as part of my compensation package, the life insurance plan my employer provides as part of my compensation package, and the paycheck I receive as part of my compensation package.

    In 1940, less than 10 percent (12 million people) of the U.S. population had any kind of health coverage. By 1950, about half of America was covered.

    What happened? Something called the 1942 Stabilization Act, a work of Congress designed to limit wage increases during wartime. The point of it was to combat inflation, which, in the words of the act itself, “threaten[s] our military effort and our domestic economic structure.” The effect, though, was that employers — needing to recruit workers at a time when many able-bodied men were overseas — began offering more generous health benefits.

    Another side effect of the Stabilization Act was that health premiums deducted by employers — while still considered part of compensation for the purposes of labor negotiations — don’t count as income, and, as a result, workers don’t pay income or payroll taxes on those benefits. The result was an incentive for the employer, rather than the employee, to make health insurance arrangements, and the era of third-party health insurance was fully underway.

    How did America end up with this health care system?

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  31. bill says:

    i wonder how you all would feel if some muslim clerics weighed in on this?! i mean, given their pure disdain for anything that has to do with women in general- let alone sexual.

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  32. An Interested Party says:

    i wonder how you all would feel if some muslim clerics weighed in on this?!

    That would just prove that there are some Muslims who are just as narrow-minded and medieval in their thinking as some Christians…

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  33. wr says:

    @JKB: Apparently JKB has decided to believe that the concept of employer-provided health insurance began in 2010, proving once again that the only way to follow his philosophy is to make himself deliberately stupid, ignoring every fact he has ever learned.

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