Something unprecedented is happening at the Supreme Court. Short-staffed, and perhaps fearful of another 4-4 deadlock, the Court has taken on the role of mediator, putting forth its own compromise proposal in a crucial case regarding Obamacare and religious freedom. And based on the briefs filed this week by the government and a consortium of conservative religious nonprofits, it just might work.
Let’s start by noting that this almost never happens. The Supreme Court is not an arbitration body; it doesn’t put forth its own ideas and ask the parties what they think about them. The last time it asked for supplemental briefs of this type was in 1953’s landmark desegregation case, Brown v. The Board of Education of Topeka.
Something about this case, Zubik v. Burwell, is different. Probably it’s the shorthanded court afraid of deadlocking again. Possibly it’s the nature of the questions presented. Whatever the reason, the Court—after receiving not just the briefs from the two sides but dozens of amicus briefs as well—asked the parties to comment on a compromise solution that the Court itself had put together. Once again, this almost never happens.
In 2012, as the Affordable Care Act was being implemented, a conservative coalition led by the U.S. Conference of Catholic Bishops objected to an obscure provision of the ACA which required all insurance plans to include coverage for contraception. In fact, this was not a new requirement: Courts had already interpreted the Pregnancy Disability Act and the Constitution as requiring that comprehensive health insurance plans include coverage for contraception.
But this was the first time that all employers over a certain size were being required to provide insurance—and that included churches, religious organizations, and religiously affiliated organizations, as well as for-profit businesses.
So, in a compromise, the Obama administration carved out a religious exemption for these groups. All they had to do was fill out a form, submit it to their insurance company, and they wouldn’t have to provide contraception coverage. Instead, the government would.
That compromise has worked well for dozens of organizations over the last few years, but some conservative religious groups objected that by signing the form, they were enabling someone else to provide the insurance coverage, and thus they were complicit in it themselves. In other words, no means yes.
Now, are these, in fact, faith-based organizations—one of whom is an order of nuns called the Little Sisters of the Poor—sincerely troubled by the possibility that one of their employees might someday use insurance to obtain contraception? Or are these organizations simply the latest way for their hard-right funders (not coincidentally, the nonprofits’ lawyers include The Becket Fund and the Alliance Defending Freedom) to chip away at Obamacare? We don’t know, and the Court won’t ask. When conservative religious people say their religious practice is burdened, the Court almost always defers to them.
Now is where it gets weird. In fact, the nonprofits’ argument was that the government is “hijacking” their health plans, using them for the religiously offensive purpose. As noted by Lyle Denniston at SCOTUSBlog, an amicus brief filed by 50 Catholic ethicists explained—with reference to centuries of Catholic teaching—that this made them morally complicit. And that, it seems, is what moved the Court to propose its alternative solution.
Under the Court’s proposed plan (the very phrase is almost without precedent), religious organizations would obtain a contraception-free insurance plan, and the insurance provider would provide a supplemental plan for contraception, as required by law. The end result is the same—employees get their health coverage—but technically, the coverage is delivered by the insurance company, not by the employer. No hijacking, no guilt—right?
On Tuesday, the nonprofits enthusiastically endorsed the compromise, while the government grudgingly did so. The conservative organizations’ brief cheered it as a way to “doom the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs.” Arguing it was “not just a matter of semantics,” the brief argued that these organizations never had any problem with people getting contraception—they just didn’t want to be involved in the process in any way.
So, all done?
Well, not quite. As the government’s brief points out, cracking the door open now will surely encourage these same activist lawyers to push it open further. Having rightly claimed victory, they will be back with further cases, all premised on the notion that simply stating “I certify the organization is an eligible organization… that has a religious objection to providing coverage for some or all of any contraceptive services that would otherwise be required to be covered’ is, itself, a substantial burden on religious freedom. That will be a huge shift, akin to the Hobby Lobby case, which held that corporations have religious beliefs.
Moreover, there’s something disturbing about the Supreme Court apparently taking a cue from a group of Catholic theologians and crafting a remedy designed to accommodate Catholic moral theology. Even were the Court not, itself, made up of five Catholics and three Jews, there would be something unseemly about tailoring administrative programs to suit sectarian theological purposes. (The Becket Fund, a lead counsel here and in Hobby Lobby, is nominally independent, but its board and staff are overwhelmingly conservative Catholic.)
And then, of course, there’s the entire matter of the Court crafting a regulatory solution that no one proposed and that, until this week, no one had endorsed. Maybe unusual times call for unusual actions, and this is the Court working hard not to be deadlocked, after a majority of senators have violated their oaths of office that require them to provide advice and consent on a Supreme Court nominee. Maybe this is the first of many such contortions of history, precedent, and law.
But with both sides having signed onto it, the Court’s Solomonic compromise is likely to become the law of the land. Strange days indeed.