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Politics, Punting, and The Supreme CourtMindee J. Reuben

On May 16, 2016, the Supreme Court declined to resolve the question of whether requiring an organization to submit a form stating that it objected on religious grounds to providing contraceptive coverage substantially burdens the exercise of religion in violation of the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. (“RFRA”). See Zubik v. Burwell, 578 U.S. ___, 2016 U.S. Dist. LEXIS 3047 (S. Ct. May 16, 2016) (per curiam). Instead, the Court vacated and remanded the cases to the respective Courts of Appeals for the Third, Fifth, Tenth and D.C. Circuits. While the Court’s decision was surprising given the split among the Circuits on the issue (many commentators have accused the Court of “punting”), this is not the first time that the Supreme Court has remanded a case after granting certiorari, particularly where oral argument or briefing has elucidated facts and positions of the parties not considered below.

By way of background, the Affordable Care Act (colloquially referred to as “Obamacare”) requires most employers to provide health insurance for its employees. It also requires that group health plans and health insurers offering health insurance include, inter alia, contraceptive coverage for women at no additional cost. An exemption is provided for religious employers (e.g., churches), and an “accommodation” is provided for nonprofit organizations that holds themselves out as a religious organizations and oppose providing coverage for contraceptive services on account of religious objections.

In order to take advantage of the accommodation, the employer must complete a self-certification form issued by the Department of Labor and provide it to its insurance issuer or third-party administrator. The form, once verified, triggers the obligation of the insurance issuer or third-party administrator to provide separate payments for contraceptive services to the plan participants and beneficiaries.

Petitioners, who are nonprofit organizations that oppose providing contraception on religious grounds, contend that the act of seeking accommodation – the act of filling out of the form – triggers the provision of (and makes petitioners complicit in providing) contraceptive coverage in violation of their religious beliefs. The Government disagrees, contending that the execution places no burden on Petitioners but, instead, triggers the obligations of insurance companies and third-party administrators under federal law to provide contraceptive coverage.

Following oral argument, the Supreme Court requested additional briefing on “whether and how contraceptive coverage may be obtained by Petitioners’ employees through Petitioners’ insurance companies, but in a way that does not require any involvement of Petitioners beyond their own decision to provide health insurance without contraceptive coverage.” In other words, could contraceptive coverage be provided to Petitioners’ employees without Petitioners having to fill out the accommodation form in the first instance?

Both Petitioners and the Government confirmed that that contraceptive coverage could indeed be provided to employees through Petitioners’ insurance companies without Petitioners having to fill out a form (although the Government has serious reservations about the ability to ensure contraceptive coverage if the employer has a self-insured plan).¹  The Court, noting “the gravity of the dispute and the substantial clarification and refinement in the positions of the parties,” remanded the cases to afford the parties an opportunity to reach agreement on an approach that balances religious exercise and the guaranty of full and equal health coverage to women, including contraceptive coverage.

In remanding the cases, the Court specifically stated that it expressed no view on the merits of the cases, including whether Petitioners’ exercise of religion was substantially burdened, whether there is a compelling government interest, or whether the accommodation form is the least restrictive means of serving that interest. Justice Sotomayor, concurring, strongly reiterated that point, and also cautioned that requiring standalone contraceptive-only coverage would leave women in limbo, and requiring women to opt into such coverage would create the precise barrier Congress sought to eliminate.

So, did the Supreme Court punt? Some commentators suggest that it did, proposing (notwithstanding the Court’s admonition) that at least some of the left-leaning Justices were strongly considering whether there is a less restrictive means of serving the government’s interest in ensuring that women have access to contraceptive care, and wanted the benefit of additional consideration of the issue by the Circuit Courts. Other commentators suggest that the Court may have been split 4-4, which would have had the effect of upholding the various Circuit Court’s opinions but not setting legal precedent, essentially where the parties are right now. Since a substantive vote would not have been particularly useful, the Court elected to punt instead.

It certainly seems plausible that the Supreme Court punted. By remanding the cases so that the parties have an opportunity to confer on alternative methods of ensuring contraceptive delivery, the Court acted more like a mediator than the highest court in the land. The question is why? If Zubik is just the latest in a series of non-decisions by the Supreme Court since the passing of Justice Scalia, what can we expect, if anything, from the remainder of the Court’s term until a new justice is confirmed? Apparently not much, not unless and until Congress confirms a new justice.
    
¹The distinction between the plans type is not insignificant and, notably, the Supreme Court’s post-argument inquiry specifically focused on a scenario where the employer had health insurance provided by an external company, and not where the employer was self-insured.