The Supreme Court on Tuesday afternoon, looking for a new way to spare religious non-profit institutions from any role in providing birth-control techniques for their employees even while assuring that those services are available, asked lawyers on both sides of seven cases to make new proposals on how both might be done. The text of the order is here.

In the two-page order, which the Justices apparently had been working on since they held a hearing last Wednesday, lawyers were told to file one new brief on each side of the controversy, and then single replies, and to submit all filings by April 20. There was no indication that the Court would hold a new hearing on this deep controversy under the Affordable Care Act.

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.

Here, in summary, is what the Court invited the two sides to attempt:

First, the new briefs — twenty-five pages long for the non-profits, twenty pages for the government, both due April 12 — suggesting how to use the non-profits’ existing insurance providers, but without “any involvement” by the non-profits other than — if they wish — to have their own health plans without contraceptive benefits.

Second, the two sides were invited to find ways to assure that the coverage is available for the employees, through the non-profits’ insurer, but without any notice by the institutions.

Third, the order provides an example: the non-profits enter a contract with a health insurer to cover their employees but specifies that any such coverage not include the types of contraceptives to which the non-profits object for religious reasons. Thus, the non-profits would have no legal obligations to provide or pay for contraceptives, and no duty to notify anybody outside their own plan of their position. Any notice to employees about access to coverage would have to be made by the insurance company, which also would tell the employees that their employer is not paying for the benefits and that those are not being provided through the institutions’ own health plans.

Fourth, as a catch-all provision, the order invited other unspecified proposals “along similar lines.” The lawyers were told not to repeat discussions they had made in prior briefs filed in the case.

Fifth, reply briefs, one on each side for the institutions and for the government, would be due by April 20.

The order made no mention of a further public hearing. The Court will be into its final hearing schedule when the new briefing is to be completed. It has the option of calling for a new hearing, if it wished.

Although the controversy involving the religious non-profits has involved health plans not only for their women employees or female dependents of employees, but also — among religious colleges — for their students of child-bearing age. The new order contains no reference to students and their access to contraceptives, but it is unclear whether that was an intended omission and, if it was, what differences might have to be arranged for colleges as to their female students.

Recommended Citation: Lyle Denniston, Court seeks new way to decide birth-control cases, SCOTUSblog (Mar. 29, 2016, 2:10 PM), https://www.scotusblog.com/2016/03/court-seeks-new-way-to-decide-birth-control-cases/