To the surprise of many, the Supreme Court yesterday punted the challenge to Obamacare's contraceptive coverage accommodation for religious non-profits back to the four federal appeals courts whose decisions had been consolidated into Zubik v. Burwell.
In doing so, the justices kept the mandated coverage in place. They said they want the non-profits and the government to work out an arrangement along the lines they suggested when they asked for supplementary briefs two months ago. And they declared that the mandated contraceptive coverage had to be acquired "seamlessly" by the insured women from non-profits' insurance companies.
In other words, the non-profits were told to find a way to live with something they once said they couldn't live with. Not to beat a dead horse (here and here), but they've already made the crucial concession -- not that they've admitted doing so.
Four years ago, Mark Rienzi of the Becket Fund made it crystal clear that the government's proposed accommodation was unacceptable to some of the nonprofits it represents.
The instant they offer health insurance, they will be triggering an automatic right to these services. The drugs will flow from the insurer they selected to the employee they hired, and they will flow solely because of the religious objector’s decision to offer health insurance. For these people, the fact that they will be pushing a button that legally requires someone else to distribute the services is a distinction without a moral difference.
For that reason, Rienzi wrote, "the only proposal that will make the president’s religion problem go away is also the simplest one: a complete and unconditional religious exemption for anyone who objects to any type of involvement with these drugs."
This position was enshrined in the nonprofits' Zubik brief, which declared, “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.'”
But last month, in response to the Supreme Court's March 29 request for supplementary briefs, the nonprofits changed their tune, granting that the government could in fact "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."
In other words, the triggering was now ok. When I pointed this out, Rienzi prevaricated: "So if anybody gets contraceptives, right, that they have pretended that the goal has always been to stand in front of the pharmacy and bar the door. That's just a cartoon version of what the religious petitioners have claimed. It's never been the claim. The claim has always been, 'I need to be separate from this.'"
Ah well. Let's put it this way. Before the death of Antonin Scalia, "being separate" meant one thing. Now it means something else.
Having gotten the nonprofits to acknowledge that their religious liberty would not be burdened by having their insurance companies pay for the contraceptive coverage, the Justices in yesterday's unanimous order pushed them to work out an arrangement whereby the coverage can be provided "seamlessly" -- a position underlined in a concurring opinion written by Sonia Sotomayor and signed by Ruth Bader Ginsburg. That tells the nonprofits that the Court will not tolerate any scheme that prevents the employes from acquiring the coverage simply and automatically.
It's anybody's guess why the Justices didn't go ahead and decide the case on the merits -- specifically, "whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
Adam Liptak of the New York Times thinks it was a way to avoid a 4-4 tie. Over at Bloomberg opinion, Noah Feldman sees it in terms of a short-handed Court reluctant to take major stands. Something else may be going on here, however.
The Roberts Court, liberals and conservatives alike, has been notably friendly to claims of religious liberty. In this case, it may prefer to have the religious petitioners freely acknowledge (rather than be forced to accept by judicial fiat) limits to a very strong free exercise claim. That would establish a useful benchmark going forward.
Moreover, a straight-up decision for the government could well have induced religious nonprofits to stop insuring their employees altogether. The kind of negotiated settlement the Court is urging will not. From a public policy standpoint, that's a good thing.