Supreme Court Seeks Alternatives in Contraceptives Case

By Allen Smith, J.D. Mar 31, 2016
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In an unusual move and perhaps seeking to avoid a deadlocked decision, the U.S. Supreme Court on March 29 ordered the parties in the Affordable Care Act contraceptives case to file supplemental briefs. The briefs are to address whether employees of nonprofit religious organizations may obtain contraceptive coverage through their employers’ insurance companies if the organizations decline to offer contraceptive coverage as part of their health plans..

The court’s order noted that religious nonprofit organizations currently may opt out of the mandate to provide contraceptive coverage by submitting a form either to their insurer or to the federal government naming their insurance company, and stating that they object on religious grounds to providing contraceptives. The insurer then provides the coverage at no cost to employees of those nonprofit organizations. Some nonprofit organizations have objected to this opt-out notification process, saying it makes them complicit in providing what they view as abortifacients—devices or pills that result in abortion.

“The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice,” the Supreme Court stated in the recent order.

The court provided one example of how this could be arranged: An employer might notify its insurance company at the time it purchases insurance that it does not want contraceptive coverage. The organization then would not pay for such coverage and would not be required to submit any separate notice. The insurance company would subsequently notify the employer’s workers that the insurance company will provide cost-free contraceptive coverage that is not paid for by the employer and is not provided through their health plan. The court asked the parties to provide other proposals along similar lines.

Avoiding a Deadlock?

The court is trying to avoid a 4-4 deadlocked decision, said Timothy Verrall, an attorney with Ogletree Deakins in Houston, noting that such a split is possible because of the death of Justice Antonin Scalia.

It’s a “bizarre twist of events,” said Amy Gordon, an attorney with McDermott, Will & Emery in Chicago. She agreed that the court “probably was going to be deadlocked,” but now is asking the parties to “try and resolve” the case. The government may come up with a concession, or the plaintiffs may agree to a notification process other than the current one.

“I don’t know if there is middle ground. Hopefully, both sides can walk away the winner,” she said.

However, Steven Friedman, an attorney with Littler in New York City, said it’s “very difficult to make a prediction now” of what the court’s two-page order indicates. The court “could be deadlocked or could truly be interested in the impact of what siding” with the nonprofit organizations would be. He said he thought the order indicated that some justices were undecided.

“It will be interesting to see what the two sides come up with and how close their visions are, and what the possible hurdles are for women working with employers seeking to avoid that coverage,” he said.

The supplemental briefs are due April 12, and reply briefs are due April 20.

This case is Zubik v. Burwell, No. 14-1418.

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

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