The U.S. Supreme Court Tuesday asked for ways to get contraceptives to not-for-profit organizations' employees without involving their employers. That request suggests the justices are trying to avoid a 4-4 split in a challenge over the matter.
The Supreme Court heard oral arguments last week in Zubik v. Burwell, a group of cases in which religious not-for-profits are challenging a government-designed workaround to the Affordable Care Act's requirement that employers cover birth control for their employees.
Now, religious not-for-profits can opt out of that mandate by notifying their insurers or the government so other arrangements can be made for contraception coverage. The not-for-profits, however, say requiring them to take any part in facilitating coverage, such as through that notification, violates their religious beliefs.
The justices seemed divided on the matter last week based on their questions during oral arguments. If the justices split their vote 4-4, the decisions of lower courts, which don't all agree on the matter, will stand. The justices are expected to vote by the end of June.
On Tuesday, however, the Supreme Court asked about getting contraception coverage without requiring opt-out notification from the not-for-profits.
The court even offered one suggestion of its own as an example: The not-for-profits could tell their insurers when they're contracting with them that they don't want their plans to include contraception coverage. The insurers would then notify the not-for-profits' employees that they could still get free contraception coverage through the insurers.
Though the court does occasionally ask for more briefs after oral arguments, it's not standard practice.
The order issued Tuesday suggests that the justices are looking for a way to get five votes on the issue, rather than splitting 4-4.
Coming up with an alternate way to get employees' contraception coverage without a notification from the not-for-profits would require changes to existing government regulations, said Doug Laycock, a University of Virginia law professor.
“But this order implies that's a way to get five votes to uphold the basic delivery of contraception the government is trying to accomplish,” Laycock said. Laycock filed a brief in the case siding with the government on behalf of the Baptist Joint Committee for Religious Liberty. That brief included the same alternative the justices offered up as an example in their order Tuesday.
He noted that the order also suggests the justices are more concerned about requiring the groups to provide notification of their opt-out than they are with the possibility of “hijacking” the groups' plans regarding coverage.
During oral arguments, several of the justices, including Justice Anthony Kennedy, who is often a swing vote, used the word “hijack” to describe how the government is using the not-for-profits' plans to deliver the contraception coverage without their consent.
The order, however, is good news for the religious organizations in the case, said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor in the matter. Little Sisters is one of the groups challenging the notification requirement.
“Clearly the Supreme Court understood the Sisters' concern that the government's current scheme forces them to violate their religion," Rienzi said. "We look forward to offering alternatives that protect the Little Sisters' religious liberty while allowing the government to meet its stated goals."
Eight of nine federal appeals courts that have considered the issue have sided with the government, meaning if the Supreme Court splits, the government would get its way in much of the country.