Court's order in contraceptive case could be way to avoid tie decision

IMAGE: CNS photo/Joshua Roberts, Reuters

By Carol Zimmermann

WASHINGTON (CNS) — Immediately
after the Supreme Court heard oral arguments in Zubik v. Burwell March 23
challenging the Affordable Care Act’s contraceptive requirement, the second-guessing
began about how the court will rule.

The 108-page transcript of the
arguments was gleaned for hardly obscure clues and court watchers predicted a
split decision of 4-4 from the eight-member court.

And then less than a week later, that prediction became cloudy.

On March 29, the court issued an
unusual order seeking additional briefs from the plaintiffs and the federal
government about how and if contraceptive insurance coverage could be obtained
by employees through their insurance companies without directly involving
religious employers who object to this coverage.

The two-page order was given a
positive spin by both sides and also seen by many as a clear indication that the court
was taking extra steps to avoid an evenly split decision that would uphold the
lower courts’ rulings and mean the contraceptive mandate for religious groups would
be interpreted differently in different parts of the country.

The case argued before the court
involves the Little Sisters of the Poor, Priests for Life, the Pennsylvania
dioceses of Pittsburgh and Erie, and the Archdiocese of Washington and other
religious groups challenging the Affordable Care Act’s mandate that most
religious and other employers must cover contraceptives, sterilization and
abortifacients through employer-provided health insurance.

These groups, who do not fit the
narrow exemption to the contraceptive mandate given to churches, argue that
providing contraceptive coverage even indirectly through a third party, as the
Obama administration allows through what it calls an accommodation, still violates their religious beliefs.

In oral arguments, the
discussion centered on health exchanges, grandfathered clauses and exemptions,
and ways to provide seamless health care coverage. But the allotted time seemed
to have left unanswered questions about other possibilities, which the court’s
subsequent order is now seeking.

Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represented
the Little Sisters of the Poor, called the court’s order “an excellent

He said it shows the court
“understood the sisters’ concern that the government’s current scheme
forces them to violate their religion.” In a March 29 statement, he also
said the attorneys “look forward to offering alternatives that protect the
Little Sisters’ religious liberty while allowing the government to meet its
stated goals.”

Priests for Life also reacted confidently,
saying: “We see this as a positive development.”

“The court appears to be
looking for a least restrictive alternative that would not burden our religious
beliefs, which will ultimately mean that the government did not satisfy its
burden under Religious Freedom Restoration Act,” the group said.

On the other side, some groups
that filed amicus briefs on behalf of the Justice Department, which is representing the
Obama administration, also viewed the court’s action in a positive light.

Brigitte Amiri, senior staff
attorney at the American Civil Liberties Union, described the court’s order as
a twist she hadn’t expected, but she also said the request for more information could
be interpreted as a recognition that “taking contraception out of health
plans is harmful.”

And Greg Lipper, senior counsel
at Americans United for Separation of Church and State, said in a blog post that
“it’s foolish to read tea leaves” in the court’s order, but he would
do so anyway.

He called it “a decent sign
for the government,” which he said signaled that at least five justices
seemed to think that the challengers’ proposed alternatives to the government’s
accommodation would “harm women by preventing them from receiving seamless
and convenient coverage.”

“If the court thought that
those other alternatives were sufficient, then it wouldn’t be looking for a way
to ensure that women retained accommodation-style seamless coverage,” he added.

Vivian Hamilton, a law professor
at William & Mary Law School in Williamsburg, Virginia, told Catholic News
Service that although she would be careful about “reading too much into the justices’ request for more
information,” it did seem to suggest that they are “considering
whether an accommodation might be crafted that would both permit the government
to meet its compelling interest in ensuring that women have the ability to
obtain contraceptive health coverage yet also respect religious employers’
objection to participating — even indirectly — in the provision of such

interpretation, from legal analyst Lyle Denniston, who writes for, a blog on the Supreme Court, said the specific wording of
the court’s order makes it seem that the justices have accepted, even if tentatively,
the views of both sides.

If lawyers representing
religious employers and the government do not come up with satisfactory answers
to the order, Denniston said the justices will have to make their decision based on the oral

And if that’s the case, the decision
could very well hinge on the word “hijack,” which was used seven times
in the 94 minutes of oral arguments to refer to the plaintiffs’ arguments the government was “hijacking” insurance plans to make
religious groups provide contraceptive coverage against their will.

“The petitioner has used
the phrase ‘hijacking,’ and it seems to me that that’s an accurate description
of what the government wants to do,” Chief Justice John Roberts told U.S. Solicitor
General Donald Verrilli Jr.

Justice Anthony Kennedy, whose vote
everyone is looking at in this case, also picked up on the hijacking theme. When
Verrilli explained that it was necessary to include contraceptive coverage in
employer health plans instead of in a separate plan, Kennedy said: “That’s
why it’s necessary to hijack the plans.”

Kennedy sided with the majority
in the 2014 Hobby Lobby ruling when it said family-owned companies run on
religious principles could object to the contraceptive coverage requirement in the
Affordable Care Act for religious reasons.

In the March 23 argument, Kennedy
questioned whether it would be difficult for the government to arrange
alternative access to contraceptive coverage that would not force religious
groups to be complicit.

“If it’s so easy to
provide, if it’s so free, why can’t they just get it through another
plan?” he asked.

For now, it’s back to the
drawing board for both sides to come up with more answers.

And the only clear signal is
that a decision on this case is not likely to come down soon, especially with
the extra homework for both sides; it will likely be released near the end of
the term in late June.

– –

Follow Zimmermann on Twitter

– – –

Copyright © 2016 Catholic News Service/U.S. Conference of Catholic Bishops. All rights reserved. Republishing or redistributing of CNS content, including by framing or similar means without prior permission, is prohibited. You may link to stories on our public site. This copy is for your personal, non-commercial use only. To request permission for republishing or redistributing of CNS content, please contact permissions at

Original Article