Supreme Court Suggests Compromise in Contraceptives Cases

By Allen Smith, J.D. May 17, 2016
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Abortion isn’t an issue that often lends itself to compromise. But a U.S. Supreme Court decision seeks to achieve just that in consolidated cases involving religious nonprofits’ refusal to submit to the federal government’s mandated way to notify insurers that they will not provide certain contraceptives. The nonprofits viewed the contraceptives at issue as abortifacients—devices or pills that result in abortion—and did not want to be complicit in providing them. 

On May 16, the U.S. Supreme Court sent cases involving women’s access to contraceptives back to the lower courts with instructions that the parties be given the chance to implement a compromise that the court identified.

The court emphasized in its decision that it “expresses no view on the merits of the cases.” But it said that the parties should be given the chance to “arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.”

The court left unanswered whether the process the federal government had in place for employees of religious nonprofits to obtain contraceptives was lawful. As Aaron Goldstein, an attorney at Dorsey & Whitney in Seattle, put it, the court’s decision “means that important questions pitting the free exercise of religion against the government’s interest in providing access to contraceptives go unanswered.”

Short-Term Fix

The petitioners are religious-affiliated nonprofit organizations that provide health insurance to their employees. Federal regulations require that they cover certain contraceptives as part of their health plans, unless the nonprofits submit a form either to their insurer or to the federal government objecting on religious grounds to providing contraceptive coverage. The insurer then provides the coverage at no cost to the nonprofits’ employees.

The nonprofits said submitting this notice substantially burdened the exercise of their religion, in violation of the Religious Freedom Restoration Act, because it made them complicit in providing what they view as abortifacients. The federal government said the nonprofits had violated the Affordable Care Act by not providing this notice.

After oral argument, the Supreme Court asked for supplemental briefing on whether contraceptive coverage could be provided to the nonprofit employees through their insurance companies without any notice from the petitioners. The nonprofits could just contract for a plan that does not include coverage for some or all forms of contraceptives, while the employees could receive cost-free contraceptive coverage from the same insurance company that provides the nonprofits’ health insurance. Both the petitioners and the government confirmed that the option was available.

There may be disagreements over the implementation of the Supreme Court’s suggested compromise, the court noted. And “the importance of those areas of potential concern is uncertain, as is the necessity of this court’s involvement at this point to resolve them,” the court stated.

The court emphasized that it did not decide whether the petitioners’ religious exercise was substantially burdened, whether the government has a compelling interest or whether the current regulations are the least restrictive means of serving that interest.

“In the short term, this case means that the parties to this particular dispute have found a solution that satisfies both sides,” Goldstein said. “In the long term, for other religious groups that are unsatisfied with the workaround addressed in this particular case, it means that they will have to wait for clarity.”

Victory for Religious Nonprofits

The Supreme Court’s return of the cases back to the lower courts “could be viewed as a small victory for the religious plaintiffs,” said Steve Friedman, an attorney with Littler in New York City. “It was these organizations that have challenged the government’s method of providing contraceptive coverage” under the Affordable Care Act when an employer objects to such coverage on religious grounds.

The nonprofits “are the only parties dissatisfied with the status quo,” he added. “And although the court did not decide anything on the merits, its decision to remand may not bode well for the status quo.”

Amy Gordon, an attorney with McDermott, Will & Emery in Chicago, noted that the Supreme Court forbade the government from fining the nonprofits for failing to provide notice to their insurers that they had religious objections to providing certain contraceptives.

Under the suggested compromise, the nonprofits don’t pay for the contraceptives, and neither apparently does the government, Gordon observed. If the insurer has to pay for the costs out of its own pockets, this could “drive up the cost of coverage for everyone else,” she said.

She described the cases as “out of the ordinary” and said she thought the result came about because there are only eight justices on the bench. After a ninth justice joins the Supreme Court, the issues raised in the cases may arise before the high court again, Gordon said.

This case is Zubik v. Burwell, Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119 and 15-191 (2016).

Allen Smith, J.D., is the manager of workplace law content for SHRM. Follow him @SHRMlegaleditor.

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