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Religious non-profits are blowing smoke in Zubik

They've surrendered on the crucial question in the case.

Man blowing smoke
Man blowing smoke

Man blowing smoke

To judge from the statements of the religious non-profits, their lawyers, and their supporters, the supplementary briefs filed in Zubik v. Burwell two days ago represent a great victory over the Affordable Care Act’s contraception mandate. But they’re blowing smoke. In fact, they’ve surrendered on the crucial issue.

That issue is whether it violates the non-profits’ religious liberty for the government to compel their insurance companies to provide free coverage for contraceptive services mandated by the ACA. If the Supreme Court were to find that it does, then the government would effectively be precluded from ensuring that the non-profits’ female employees receive the coverage.

In January, the non-profits told the court that such was the case: “Petitioners object to hiring or maintaining a relationship with any insurance company that is authorized, obligated, or incentivized to deliver the objectionable coverage to Petitioners’ own employees or students in connection with Petitioners’ own health plans, regardless of how that authority, obligation, or incentive is ‘triggered.'”

At the oral argument in March, this position was reiterated by the non-profits’ lawyers. Ways in which contraceptive coverage could be provided without the objectionable triggering were listed by attorney Paul Clement as “through the [ACA] Exchanges, through Title X, through an Aetna uber-policy where everybody gets their contraceptives.” Not, that is, via whichever insurance company the non-profit happens to have engaged.

What followed was the court’s request for supplementary briefs to answer two questions:

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.

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.

And what was the response of the non-profits’ in their supplementary brief? Here’s the critical paragraph.

In sum, there is no need to demand any separate certification or notice from the petitioner in order to effectuate a scheme in which any of the petitioner’s employees who want contraceptive coverage can get it from the same insurance company with which the petitioner contracts. The government can obligate, incentivize, or contract with the insurance company to offer separate contraceptive coverage to employees who do not receive any coverage from their employer without any involvement by the petitioner “beyond [its] own decision to provide health insurance without contraceptive coverage to [its] employees.”

In other words, so far as the non-profits are concerned, it’s now OK to require the insurance companies they contract with to cover the contraceptive services. Their January objection “to hiring or maintaining a relationship with any insurance company that is authorized, obligated or incentivized to deliver the objectionable coverage” is null and void.

Stanford law professor Michael McConnell, a former federal appeals judge who has been one of the non-profits’ staunchest supporters, blew the smoke this way: “In truth, the conflict is over whether the petitioners can be forced to file forms that the government deems to be authorizations to use their health plan as the infrastructure for the provision of contraceptive coverage. Now, the Court has asked a logical question: Why is it necessary for the petitioners to sign such a thing?”

Indeed, the court will have to decide precisely how petitioners (the non-profits) will give their notification. That question, the court’s second, remains to be answered. But on the crucial first question — whether the insurance companies can be required to provide the contraceptive coverage, the non-profits now concede that they can. That’s the surrender.

Update: Don’t believe me? Then believe these guys: