In the first of a two-part series, National Constitution Center constitutional literacy adviser Lyle Denniston looks at the Supreme Court’s unusual order to ask for more written arguments in the current Obamacare case in front of the eight Justices.
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…
The Constitution has two sturdy guarantees of religious freedom in the First Amendment’s promise of free religious expression and its ban on government “establishment” of religious bodies or principles. Neither is directly before the Supreme Court now in the high-profile dispute over the new heath care law’s contraceptives mandate, but the group of seven pending cases may rank together as one of history’s most important tests of church-government relations with constitutional overtones.
After listening to lawyers argue the case, the Justices issued a highly unusual order a few days later, summoning additional written arguments by lawyers on both sides – presumably to assist the Justices in making up their minds how to decide. There are few, if any, parallels to that kind of order in the court’s entire history.
In essence, the Justices have put together what they appear to believe to be a plan that could satisfy the dictates of the federal Religious Freedom Restoration Act – the law that is directly at issue in the cases filed by religious hospitals, schools and charities who object to birth-control on the premise that it is an aid to abortion. With the order, the Justices seemed to be asking the lawyers on both sides whether they agree that the plan would satisfy RFRA, and, if so, whether their clients would agree to go along.
Because the Justices probably experienced little doubt that they had the authority to make such an odd request (rather than taking the case as it had come to them), one perhaps should not dwell on quite serious questions about whether such an order was beyond its authority. Such questions seem to hang over the order, because it looks somewhat like an attempt at mediation and something like an advisory opinion of what might be legal under RFRA. Normally, the court does not do either, and that may be because it shouldn’t, constitutionally.
Taken on its own terms, though, here is what the court said it had in mind. The non-profit religious institutions would start with new contracts with an insurance company, if they wanted to provide health insurance coverage for their employees. But such a contract would make specific that it was not covering access to the kind of contraceptives to which the non-profit objected on religious grounds. All that the institutions would have to do was to enter such a contract as specified, achieving employee health coverage exactly as they wished.
The insurance company, knowing that it was not to put together any coverage for contraceptives under the institutions’ existing health plan, would draw up another plan – one involving no role for the institutions – that independently provided access to contraceptives.
From the obvious meaning of the order’s terms, the court seemed to be accepting, at least temporarily, that RFRA does require the government to provide several degrees of separation between a non-profit institution and actual access to the kind of birth-control it believes to be sinful. And it also appeared to be accepting, at least tentatively, that the ACA would do just that, in keeping with RFRA, because the independent arrangement would be the alternative with the least threat to the institution’s religious beliefs.
There are reasons to question whether either side would go along, or would be entirely comfortable if it did go along.
For the non-profit institutions, they object not only to being responsible for providing access to contraceptives, but even to having a contractual relationship with an entity that itself made the contraceptives available. The court has been told that, at least for the Roman Catholic non-profit institutions, the teachings of the church would not tolerate such a contractual relationship any more than it would tolerate an institution having itself provided the contraceptives.
For the federal government, the court’s proposal apparently would not allow for what government officials believe to be essential to making the ACA program of contraceptives available to women – that is, such access must be “seamless.” By that, the government means that the women should not have to go to different doctors to get contraceptives, and should not have to carry two insurance cards – one for health coverage generally, one for contraceptive access. Those kinds of additional obstacles, government officials believe, would act as strong deterrents for many women.
But, assume for the moment that each side could find a way to put those potential problems aside. Would that clear the way for them simply to tell the court that its proposal is the way these cases should come out, as an approach that RFRA would permit, and then have it actually happen in real-world terms? It might not, or at least that might not happen quickly.
First, it would appear that the non-profit institutions would have to enter new contracts with their health insurance companies, because explicit exclusion of contraceptives is not a provision in most, if any, of the existing contracts. The Supreme Court, of course, would have no authority to dictate that such contracts be drawn up and signed. Would enough non-profits go along to make the court plan workable to spare their beliefs under RFRA?
Second, it would appear that the government would have to go back to the rules-writing process and craft entirely new regulations to implement this alternative approach. The existing regulations under the ACA contraceptives mandate are, in fact, the reason that there is a controversy now before the court, and the Justices appeared to be imagining that those would be replaced. How long would it take to go through the rather labored process of drafting new rules, putting them out for public comment, and then putting them into final, and binding, form? The court, on its own, cannot simply write new regulations.
Of course, creative and knowledgeable lawyers can make many difficult things happen, in legal terms. The Supreme Court cases that will go down in history under the name Zubik v. Burwell may be a stern test of those talents. And, should one or both sides refuse to embrace the court’s suggestion, then the court itself might have to become quite creative.
