Constitution Check: If the Supreme Court’s birth-control idea is rejected, what then?

In the second of a two-part series, Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at what happens if one or both sides won’t embrace the Supreme Court’s novel idea in the Obamacare case.

Link: Read Part One Of This Series

AGAIN, THE STATEMENT AT ISSUE

“The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by employees [of non-profit religious institutions] through [the institutions’] insurance companies, but in a way that does not require any involvement of [the institutions] beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

 – Excerpt from a Supreme Court order issued March 29, calling for added legal arguments from both sides in the seven combined cases now under review by the Justices on women’s access to birth-control devices and techniques under the Affordable Care Act. The first of those added briefs are to be filed April 12.  All such filings must be completed by April 20. The court has not indicated how it will proceed beyond that point.

WE CHECKED THE CONSTITUTION, AND…

In 1993, when Congress passed the Religious Freedom Restoration Act, it was thinking about the constitutional right to the free exercise of religion in America, a right that it thought had been threatened by a Supreme Court decision in 1990 allowing a neutral government regulation to be enforced against some religious practices – in that case, the use of a particular drug in Indian tribal religious ceremonies (Employment Division v. Smith).

But Congress did not seek to undo that decision by drafting a constitutional amendment – the usual way to do away with a constitutional ruling by the courts that Congress finds objectionable.  Instead, Congress wrote a sweeping law that definitely favors religious sects when they are confronted by a government regulation or command that they believe, in the perceptions of their faith, to be a sin.  That is the Religious Freedom Restoration Act.

Thus, when the Supreme Court agreed during its current term to review how that Act applies to the Affordable Care Act’s mandate that employers provide birth-control materials and techniques for women of child-bearing age, it was bound to be drawn deeply into the realm of the civic implications of moral theology. It is never entirely comfortable in that realm, and the seven combined cases known as Zubik v. Burwell have shown that this time, too, the court is not entirely sure of its judicial footing.

In a strangely worded order issued late last month, the Justices reached out to the lawyers in the case for some help, asking them to react to the court’s own idea of a way to decide whether the ACA mandate, and its implementing regulations, tread too heavily upon the beliefs of religious non-profit hospitals, charities and colleges that oppose contraceptives as a matter of faith.

The first discussion here of the implications of that order examined what would happen if both sides were to embrace the court’s suggestion. Given the legal reality that the court cannot compel the two sides to endorse its proposal, the question now arises: what if one or both sides say they cannot embrace that idea as a way to resolve the dispute?

It is not too difficult to imagine that happening, in fact. The court’s plan goes a good way toward assuring the non-profits that they would not be directly involved in the pass-through of contraceptives from a government-regulated source to their employees, but it still would use the same insurance company that writes health plans for a non-profit’s employees.  And, while the court’s suggestion would help the government assure women that they could still get access to contraceptives, it does seem to imply some complications for the women and not the easy-to-use method now provided under existing Affordable Care Act regulations.

Lawyers for either or both sides could wind up, next Tuesday, telling the court that the proposal is flawed, and that it leaves a live controversy between them.  Or they could suggest ways to modify it and imply that those would be necessary for them to go along. What then?

The court would still have before it the same combined seven cases, and the same reality that lower courts are split on it and thus need guidance, and the core issue would still be the same: Do the existing ACA regulations violate RFRA?

First possible scenario: the court, loosely speaking, might take the view that, “Well, we tried,” and set forth on drafting a ruling that declares that the government cannot enforce the ACA contraceptives mandate without new regulations, and that the non-profit institutions cannot bar the government from doing the best it can to insulate them from involvement.  The government wins on that scenario, but it has to put everything off until it has new rules.

Second possible scenario: the court, again implying that, “Well, we tried,” could work on a ruling that says the government has done all that it could to accommodate the non-profits’ faith objections, and it just wasn’t enough.  The non-profits win on that scenario, and the case is over, forcing the government to rethink its existing rules.

Third possible scenario: the court, feeling that the idea of floating a potential compromise remained a good idea, could appoint a “special master” to review possible variations on the court’s idea, and then submit potential recommendations for a ruling.

Fourth possible scenario: the court goes back to the opinion-writing process, a bit frustrated, and once more confronts the possibility that four Justices are strongly inclined to be on one side in answering the core question, and four others feel just as strongly on the other side.  If such a deadlock can’t be broken by some compromise, then a four-to-four split would end these cases, settling nothing definitively and awaiting the arrival of a ninth Justice to replace the late Antonin Scalia, and the appeal of a new case on the same issue.  There are plenty from which to choose a new test of RFRA and the ACA mandate.

Fifth possible scenario: the court decides to put the case on hold until sometime in its next term, starting next October, in hopes that, by then, the Senate will have approved a successor to Justice Scalia.

Now, what is not likely to follow a rejection of the court’s idea by the two sides? First: the court does nothing at all, just letting the controversy sit unresolved, deciding it makes no sense in the current atmosphere to try to decide it.  Second, the court dismisses the case as one that should never have been granted in the first place.  Third, it tells the lawyers to come up with alternatives, and they don’t come back until they have one they can mutually accept. And, fourth, it finds that RFRA is unconstitutional because it goes too far to require the government to accommodate religion (the court actually has been asked to do that very thing, and has not yet been tempted).

All of this, one way or another, starts next Tuesday, when the lawyers’ replies to the court’s idea are due.