Shortly following oral arguments in Little Sisters of the Poor v. Burwell, with which the Supreme Court consolidated six additional lawsuits challenging the HHS contraception mandate, the Court took a step it hasn’t taken since 1953. It ordered the litigants to weigh in on a compromise solution proposed by the Court itself: “The parties are directed to file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners’ employees through the 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 to their employees.”
That the Court issued such an unusual order suggests that the justices are trying to avoid a 4-4 ruling, which would leave a messy lower court split in place and probably doom them to hear yet another case about the mandate. The Little Sisters of the Poor, whose lawyers have already suggested a number of alternatives to the mandate and the phony HHS accommodation, eagerly responded thus: “Yes. There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order.”
The hypothetical plan described by the SCOTUS order would work as follows: An objecting nonprofit “would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.” The nonprofit “would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees.” The insurer and the federal government would handle those details.
The Court’s proposal was not enthusiastically received or easily answered by the Obama administration lawyers. As former federal appeals court judge Michael McConnell puts it at the Volokh Conspiracy: “If it answered ‘yes,’ it would effectively be admitting to a RFRA violation.” RFRA is the acronym for the Religious Freedom Restoration Act, which requires the administration to show that the mandate serves “compelling governmental interest” and is the “least restrictive means” of pursuing that interest if it “substantially burdens the free exercise of religion.” The contraception mandate fails these tests, but the government’s lawyers cannot explicitly admit that.
Consequently, the Obama administration’s supplemental brief makes the following claim: “Except for the self-certification process, the existing accommodation for employers with insured plans already contains all of the elements posited in this court’s order.” The self-certification exception involves the bureaucratic redundancy that requires organizations like Little Sisters of the Poor to provide written notification to the government that they object to paying for contraceptive services. It accomplishes nothing, but the government lawyers nonetheless insist on the status quo, “The Court should not require any change to the self-certification process.”
At length, however, the administration does grudgingly concede that modification of the mandate and the accommodation is at least possible: “Because insurers have an independent statutory obligation to provide contraceptive coverage, the accommodation for employers with insured plans could be modified to operate in the manner described in the Court’s order — but only at a real cost to its effective implementation.” Interestingly, the government’s brief doesn’t elaborate on that last point, and it isn’t clear how the removal of redundant bureaucratic paperwork and unnecessary notifications would render implementation less effective. But this is, after all, the federal government.
On the other hand, the administration’s supplemental brief does devote considerable verbiage to a far-fetched slippery slope argument: “A decision requiring a modification to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.” It goes without saying that this portion of the brief somehow neglects to mention that neither Little Sisters of the Poor nor the other petitioners have ever advocated denying anyone access to contraceptive coverage.
It also neglects to mention that much of the controversy and expensive litigation caused by the contraceptive mandate could have been avoided had it been implemented in an equitable fashion by the Obama administration. Fr. Frank Pavone of Priests for Life, another of the petitioners in this case, points out that the mandate has been imposed in a highly selective manner: “While the government claims it’s ‘compelling’ to make abortifacients available with ‘administrative convenience’ to the women who work for Priests for Life, it’s apparently not so compelling to make them available to the women who work for Visa.” Exxon, Chevron, and Pepsi also enjoy special exemptions.
And yet, if the Supreme Court sides with the Obama administration or hands down a 4-4 ruling, the Little Sisters of the Poor will face crippling fines or be forced to shut down. But the Court’s unusual order offers a ray of hope. HHS has always claimed that its only goal is universally available, free access to contraception and SCOTUS has suggested a way to achieve that without diluting religious liberty. By saying “yes” to the Court’s proposal, the Little Sisters have in effect called the Obama administration’s bluff. Now all that is needed is one liberal justice willing to force HHS to live up to its word.