Nuns offer contraceptive mandate compromise

The U.S. government and the religious nonprofits challenging the contraceptive and abortifacient mandate each filed on Tuesday night the highly unusual supplemental briefs requested by the Supreme Court two weeks ago. The nonprofits’ brief gives the court a possible way forward in the case, Zubik v. Burwell, commonly known as the Little Sisters of the Poor case. The government stood pat on its previous positions—though it issued reluctant qualifications for a compromise.

“The caricature is, ‘Oh these religious people will never be satisfied,’” said Mark Rienzi, the Becket Fund for Religious Liberty lead attorney representing Little Sisters of the Poor. “That is just a cartoon version of what the religious petitioners have claimed. The claim has always been, ‘I need to be separate from this.’ … It’s not a change in position at all.”

The court ordered the opposing sides to file additional briefs outlining acceptable alternative accommodations using the nonprofits’ insurance companies, leaving aside those who are self-insured. The unusual order came days after oral arguments in the Little Sisters case and indicated the court might have been deadlocked on the issue 4-4 after the death of Justice Antonin Scalia.

Usually the Supreme Court stays within the bounds of the specific legal questions of a case. But this time, the justices asked those involved to come up with a new solution themselves. One proposal in the court’s order: allow the nonprofits to tell their insurers they don’t want contraceptives, and then allow the insurers to arrange separate contraceptive coverage. The nonprofits embraced this idea, with conditions.

Self-insured organizations in particular might feel more hopeful after looking at the court’s order and the briefs. Neither the government nor the nonprofits have a real solution for the self-insured nonprofits involved in this case, aside from switching to commercial insurance. The court didn’t mention the self-insured in its order either, perhaps indicating the justices are not deadlocked over their plight.

The Little Sisters brief, headed by lead litigator Paul Clement, proposes several alternatives. The brief underscores that the nonprofits wouldn’t necessarily endorse the alternatives “as a policy matter.” But the proposals would allow them to avoid “moral complicity,” they said, using the Catholic theological term.

The nonprofits’ main proposal is that the government impose the mandate “directly on insurance companies” instead of on the nonprofits. Under this proposal, nonprofits should be allowed to contract health plans without the objectionable drugs. Then the insurance company would provide employees separate coverage, with separate enrollment and separate insurance cards. How would the companies pay for the drugs? The government already reimburses insurance companies providing the drugs to self-insured organizations.

Boiled down, the insurer would offer employees a separate contraceptive-only plan, which the nonprofits said should not be a complex arrangement because people already have separate cards for dental and eye insurance. The brief said some states already require the availability of contraceptive-only plans, and that “still more states allow insurance companies to market separate abortion coverage.”

The nonprofits said this would not “hijack” their plans, as they have previously argued, because they would not be required to take “affirmative steps … on pain of massive penalties” to include coverage in their health plans.

“[T]he only action the petitioner would take is to choose to provide a plan that does not include some or all contraceptive coverage,” the nonprofits wrote. “Once that happened, the petitioner’s involvement would be at an end."

The government brief from U.S. Solicitor General Donald Verrilli Jr., insists the current nonprofit accommodation achieves what the court was looking for in its order, and that the only difference in the court’s proposal—to have nonprofits tell their insurers they don’t want the drugs—is how the nonprofit “communicates its decision to opt out.” The government said the court’s proposal in its order would be costly and likely wouldn’t satisfy many nonprofits.

“In nearly five years of administrative proceedings and litigation, petitioners have never suggested that an arrangement like the one posited in the court’s order would allay their religious objections,” it wrote. Of course, the burden of proposing a religious accommodation, until this strange Supreme Court order, was not on the nonprofits.

The government’s brief warns that if the court finds some deficiency in the accommodation and agrees on an alternative, litigation could continue because some nonprofits would disagree with the alternative. The government urged the court, if it decided to go with an alternative accommodation, to declare that it complies with the Religious Freedom Restoration Act (RFRA) and thus end litigation.

The opposing sides will file reply briefs addressing each other’s arguments by April 20. If the court decides it is still deadlocked, it could announce that soon after, but otherwise a ruling is likely sometime before the end of June.

“It’s a pretty easy path to consensus for the court,” Rienzi said. “This doesn’t have to be a situation where one side wins and the other side doesn’t get what it wants.”