Supreme Court justices want to avoid a 4-4 tie in the latest challenge to the Affordable Care Act's contraception mandate, but some observers see a proposed compromise between the Obama administration and religiously affiliated nonprofits as possibly prolonging legal battles.
Lawyers from both sides in the case Zubik v. Burwell submitted supplemental briefs on Tuesday, appearing open to the potential solution floated by the justices in their unusual request for more information following a March 23 hearing.
Under the current accommodation for religiously affiliated nonprofits, employers notify the government of their objection to contraceptive coverage and the government then works with their insurance plan to ensure coverage for interested employees. The compromise proposed by the court would further separate these nonprofits from providing contraception, requiring the insurance plan to contact employees.
"So long as the coverage provided through these alternatives is truly independent of petitioners and their plans — i.e., provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication — petitioners' (Religious Freedom Restoration Act) objections would be fully addressed," wrote lawyers in their supplemental brief representing the group of religious objectors, which includes schools, hospitals and Catholic charities.
Although U.S. Solicitor General Donald B. Verrilli Jr. argued in the government's brief that such a modification to the current accommodation is unnecessary, he wrote that it would be acceptable if it ended legal challenges that take years to resolve.
"A decision requiring a modification to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient would lead to years of additional litigation," Verrilli wrote.
Legal experts said these supplemental briefs could provide a path out of gridlock in Zubik v. Burwell, but some observers added that it remains unclear how to balance the contraception mandate with religious freedom law moving forward.
"Taking the proposed solution would resolve present cases, but it wouldn't resolve future problems," said Matthew Franck, director of the William E. and Carol G. Simon Center on Religion and the Constitution at The Witherspoon Institute.
The nonprofits, which include a group of nuns called Little Sisters of the Poor that sued the government and appealed to the high court, surprised some observers with their willingness to compromise.
In accepting the proposed solution, religiously affiliated nonprofits seem to be drawing a distinction where there isn't a difference, wrote Mark Silk, a professor of religion in public life at Trinity College, in his column for Religion News Service.
"Up till now, the nonprofits have insisted again and again that they cannot be party to any arrangement that 'triggers' the contraception coverage by their insurer," he said. "But under the process they have now accepted, the insurance company is no less triggered. It will be obliged to provide the coverage."
Responses like these mischaracterize what the plaintiffs hope to achieve in the lawsuit, said Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, the law firm that represents the Little Sisters, in a Wednesday press call. The religiously affiliated nonprofits want to be separated from the process by which their employees receive contraceptive coverage; they don't want to ban access to contraception, he noted.
"This doesn't need to be and shouldn't be a situation (in which) one side wins and any other side can't get what it wants. It's always been the case that the government can provide contraceptive coverage separately," Rienzi said.
If the administration's goal is providing contraception access to women, they should accept the compromise as the Supreme Court justices laid it out, Rienzi argued.
"The government needs to take yes for an answer here," he said.
But even if the proposed solution is part of the Supreme Court's ruling, the future remains uncertain, according to legal experts. For example, the supplemental brief doesn't resolve contraception coverage in church plans, which the Little Sisters use.
The Department of Health and Human Services "would have to rewrite regulation and this might have to be litigated all over again," which is what the government hopes to avoid, Franck said.
On the press call, Rienzi said rolling out the changes would be smooth, especially if insurance companies are as motivated to create contraceptive-only insurance plans as the administration has argued they are.
"This is as seamless as anything the government has proposed," he said.
Lawyers for the petitioners and the Obama administration have until April 20 to submit responses to the opposing side's brief. The Supreme Court's ruling isn't expected until June.
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