Constitution Daily

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U.S. seeks nationwide advice on birth-control dispute

July 23, 2016 by Lyle Denniston


The Obama administration, in a major surprise, on Thursday, launched a nationwide plea for advice — technical, practical, legal and even religious — on ways to settle the bitter controversy over the Affordable Care Act’s birth-control mandate.  This appeared to be a sign that private talks with religious groups over the issue have not reached a solution.

Affordable Care Act DocumentIn each of the federal appeals courts where single cases or groups of cases were returned by the Supreme Court in mid-May, in hopes of a bringing about a compromise, administration lawyers on Thursday filed documents spelling out their plan to reach well beyond the groups involved in the cases, soliciting answers from anybody who is interested to a series of questions on possible ways to avoid an impasse. (The filings were identical; here is the one filed in the U.S. Court of Appeals for the District of Columbia Circuit.)

On Friday, the government followed up with a lengthy document published in the forum it uses for formal actions and announcements, the Federal Register.  The five-page document listed the questions and inviting comments from what the government described as “a wide variety of stakeholders.”   Replies are due by September 20 — about two months from now.

The document is exceedingly specific in its inquiries about how to achieve two twin objectives — mandated by the Supreme Court.  One would be to accommodate the religious views of hospitals, charities, and schools that have objections based on faith to providing contraceptives to their female employees or students. The other would be to assure women of child-bearing age that they could get — easily and cost-free — access to a full range of contraceptive devices and methods.

The Justices, by a unanimous vote, spelled out those two objectives when the Court decided, on May 16, not to try to settle on its own the nationwide controversy over the ACA contraceptives mandate.  After it asked for and got a second round of legal briefs on a possible compromise, the Court appeared to sense that the two sides were close enough to each other in their views that they might work out the dispute, so the Justices told lower courts to give them time to see if that could happen.

Nothing significant had been happening in the appeals courts since then, other than setting dates for status reports on how the talks were progressing.  As recently as 10 days ago, for example, lawyers representing religious groups in the cases now pending in the U.S. Court of Appeals for the Third Circuit said that both sides “remain in communication to evaluate next steps.”  Those lawyers politely turned down a suggestion by that court’s clerk to consider bringing in a mediator, saying they preferred to go on discussing a possible agreement.

Then, on Thursday, the Justice Department lawyers filed a status report in each court.  Speaking for the federal government alone, each report was worded identically and announced the nationwide “request for information” to be sent to the federal agencies that manage the ACA mandate.   Each of those reports asked the appeals courts to “take no action” and to give the government 65 days to file its next status report.  That further report, it said, would spell out how much more time would be needed to evaluate the information that is gathered.  All of this, it indicated, may be a prelude to writing new government regulations on how the ACA birth-control mandate is to work hereafter.

Although the Federal Register document, and the notices that the government provided to the various appeals courts, insisted that the government still believes that the regulations it had previously issued provided the accommodation necessary for the religious organizations, the questions posed in the new document appeared to be sufficiently broad — even open-ended — so that the inquiries do not appear to be stacked to get preferred answers.

Depending on the answers the government receives, that could either bolster its claim that it had already found the workable way to achieve the Court’s two objectives, or it could actually get help in devising a new round of regulations that would reflect considerable areas of — it not total — agreement.  Many of the groups that had filed amicus briefs in the Supreme Court, on one side or the other, probably will be among those offering answers.

The government’s questions come in three groups, partly tied to the compromise suggestion the Supreme Court had fashioned before it returned the cases to the appeals court, but partly going beyond what the Court had laid out.

The first set of inquiries deals with possible alternatives to the current regulations’ requirements that the religious employers must take some action to explicitly exempt themselves from having anything to do with providing access to contraceptives to which they object.   This set of questions asks, for example, if the religious groups could accept the way the Court suggested that access might be arranged without their input.  If they still object, they are asked what alternative they might suggest.  Another question in that section asks health insurers if they could work with a system in which they got no notice at all of the religious groups’ objection.

A second set of questions focuses on potential workarounds for contraceptive coverage, if a religious group has an outside insurance provider setting up and managing its plan (a so-called “insured plan.”)  One issue the document wants to be answered is the feasibility of something the religious groups have proposed: setting up coverage plans that are limited solely to contraceptives, and requiring women workers to make the effort to obtain the coverage.  There are state law complications with contraceptive-only policies, the document added.  Among other questions in this section, the document asks what impact that would have on women.

The third set of inquiries focuses on self-insured plans — that is, those that a religious organization sets up on its own and acts as its own insurance provider.  Such plans, in fact, were not covered in the Supreme Court’s suggestions for potential compromise.  This section of the Federal Register document seeks to draw ideas for “reasonable alternative means” of guaranteeing women access to contraceptives, even under self-insured plans.

It appears that the next step in this sharp shift in the post-Supreme Court maneuvering is up to the religious organizations that sued the government to block the mandate.  They presumably have the option of participating in the government’s public search for a new mode of accommodation or complaining to the courts that the government is trying to manage the next steps on its own.

There appears to be no legal mechanism at this point to stop the new information-gathering system that the government has now launched.

Whether this deeply emotional dispute works its way back up to the Supreme Court is beyond reasonable speculation at this point.

Lyle Denniston is currently the National Constitution Center's constitutional literacy adviser. Later this summer, Denniston will become our full-time Supreme Court correspondent based in the Washington, D.C. area.

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