Supreme Court seeks details on alternative contraceptive coverage

By Carol Zimmermann

WASHINGTON (CNS) — Less than a week after the Supreme Court heard oral
arguments about the Affordable Care Act’s contraceptive requirement, the court
released an order requesting that additional briefs be submitted showing if and
how contraceptive insurance coverage could be obtained by employees through
their insurance companies without directly involving the religious employers objecting
to this coverage.

The order was
released the afternoon of March 29, just six days after the justices heard oral
arguments in Zubik v. Burwell, a consolidated case involving the Little Sisters
of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and the Archdiocese of Washington. The groups are challenging
the Affordable Care Act’s mandate that most religious and other employers must cover contraceptives, sterilization and abortifacients through
employer-provided health insurance.

Religious groups
who did not fit the narrow exemption to the contraceptive mandate given to
churches and religious groups argue that they cannot participate in providing
contraceptives without violating their beliefs and that the Obama
administration’s “work-around” allowing them to acknowledge their
opposition and thereby trigger an arrangement for a third party to provide the
coverage is still objectionable.

The court’s March
29 order specifically outlined the procedures that objecting religious employers
must follow if they do not want to provide insurance coverage of contraceptives
and went on to suggest that the groups could contract a third party to
provide health insurance for their employees, but they would need to inform the
insurance company that they did not want the plan to include contraceptive
coverage that they find objectionable.

The insurance
companies, the order said, could “separately notify petitioners’ employees
that the insurance company will provide cost-free contraceptive coverage, and
that such coverage is not paid for by petitioners and is not provided through
petitioners’ health plan.”

With the plan, the
objecting religious employers would not have to submit a form to the government
or their insurance companies about the coverage.

The Supreme
Court’s order also pointed out that the parties involved in this case may have
“other proposals along similar lines,” but they should avoid repeating
what they mentioned in previous briefings.

The additional
information should be submitted by April 12 and should be limited to 25 pages for
the petitioners and April 20, and no more than 20 pages, for respondents, the order

The court’s
request for more information came out the same day the court voted 4-4 in a
case challenging the fees that labor unions collect from nonmembers.

Many have
speculated that with Justice Antonin
Scalia’s death in February, the current court of eight justices will result in a number of split decisions.

After the oral
arguments in Zubik v. Burwell, there was plenty of speculation that the court
seemed poised for a split decision in this case as well, which would uphold the
lower courts’ decision and mean the contraceptive mandate for religious groups
will be interpreted differently in different areas of the country.

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Follow Zimmermann on Twitter: @carolmaczim.


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