Symposium: Zubik and the demands of justice

Nelson Tebbe is a professor of law at Brooklyn Law School and visiting professor of law at Cornell Law School.  Richard C. Schragger is Perre Bowen Professor of Law at the University of Virginia School of Law.  Micah Schwartzman is Edward F. Howrey Professor of Law at the University of Virginia School of Law.

Today, the Supreme Court handed down its decision in Zubik v. Burwell, the closely watched sequel to Hobby Lobby. The Court did not decide the merits of the cases consolidated before it. Instead, it remanded those cases to the lower courts, urging – but not requiring – the parties to come to an agreement. Though this development bodes well for women’s equal access to health care, and though the decision is best read to demand safeguards for women, the Court could have done more to ensure that its opinion met the demands of justice.

That said, this opinion ought to be viewed as salutary for employees – because, as a practical matter, it will likely play out in their favor. Four Justices dissented in Burwell v. Hobby Lobby, insisting that employers could only be protected insofar as no harm resulted to third-party employees. Such harm would raise constitutional worries, as we have argued. On an eight-member Court, those four Justices now have enough votes to ensure a win for the government in all but one of the cases consolidated in Zubik­ – all those where the government won below. What is more, the Court emphasized in the Zubik opinion handed down today that the ability of the government to protect women must be preserved during any settlement negotiations below.

On remand, the government may offer a resolution that lifts any claimed substantial burden on the religious employers while protecting women’s equal access to health care. But nothing in the opinion today suggests that religious non-profits actually have suffered a substantial burden on their religious freedom, and nothing requires the government to agree to a settlement that burdens third parties – or indeed to offer any settlement at all beyond the current accommodation. Let us back up and explain why.

Zubik is a challenge by religious non-profits to the government’s accommodation of their religious objections to the contraception mandate. Under the government’s accommodation, religious non-profits need not comply with the contraception mandate. They can simply notify the government or their insurance company of their religious objection. Then the law requires the insurance company (or third-party provider) to provide coverage to employees without cost-sharing.

Yet the religious non-profits complained that even this is not enough, and that the government’s plan somehow makes them complicit in their employees’ sinful use of contraceptives. They argued that the Religious Freedom Restoration Act (RFRA) prohibited their perceived involvement. In seven out of eight circuits, the lower courts rejected that complaint, mostly reasoning that the non-profits’ religious beliefs had not been substantially burdened. After all, they explained, the whole point of the government’s plan was to lift a burden on religious employers – and under its accommodation, contraception coverage would be required by the government, not the employer, and paid for by the insurance company, not the employer.

After oral argument, the Supreme Court ordered additional briefing on the question of “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 to their employees.” The parties responded with supplemental briefs, and then with supplemental reply briefs.

In their supplemental brief, the religious non-profits said “yes” to the Court’s suggestion that they could simply arrange for coverage that did not include contraception coverage, which would then be provided by the insurance company. But this answer was immediately and severely qualified, as Marty Lederman has explained in his exhaustive and expert analysis. The non-profits insisted that contraception coverage could only be provided by their insurers if “there are two separate health insurance policies . . . with separate enrollment processes, insurance cards, payment sources, and communication schemes” (internal quotation marks omitted). Moreover, they argued that employees must affirmatively opt in to any such plan, rather than being automatically enrolled. The non-profits made it clear that these were requirements for satisfying their religious convictions.

The government responded by arguing that RFRA does not require that contraception coverage be provided by a separate insurer or plan. Nor does it require that employees opt in, rather than be covered automatically. For various reasons, some of which involve complicated questions of state law and federal employment law, these two conditions would result in coverage that was not “seamless” and therefore not effective. The result would “harm tens of thousands of women,” something RFRA cannot be construed to require. As Solicitor General Don Verrilli put it at oral argument, “[t]he whole point of this provision, the whole point of it, was to ensure that people who got health insurance would get the preventive services as part of their regular care from their regular doctor with no barriers.” Anything else would result in predictable and significant harm to thousands of women.

However, the government also acknowledged that it might be possible to modify its accommodation along the lines of the Court’s suggestion. Under that suggestion, employers would simply arrange for health insurance that did not include contraception coverage, and their insurance company would then be required to provide that coverage without cost sharing.

In its opinion today, the Court notes that concession by the government. It also characterizes the non-profits as agreeing to a solution where they need do nothing more than arrange for health coverage that does not include contraception, even if their employees would then receive that coverage seamlessly from the same insurance company. A difficulty with this characterization is that the non-profit employers actually have insisted that such an arrangement is not enough – again, they will object to any solution that does not involve separate plans, separate policies, separate enrollment processes, separate insurance cards, separate payment sources, and separate communication schemes. And that is to say nothing of their requirement that employees opt in. But according to the government, these additional requirements will mean that employees will go without coverage, resulting in irreparable harm to full and equal health care for women in the workplace.

Crucially, the Court does not require the government to accept any arrangement that would harm women – it only gives the parties the “opportunity” to arrive at an agreement. Also crucially, the Court emphasizes that “[n]othing in this opinion . . . is to affect the ability of the Government to ensure that women covered by petitioners’ health plans obtain, without cost, the full range of FDA approved contraceptives” (internal quotation marks omitted). This language should make it clear to lower courts that the Court has given the government leeway to protect full and equal access to women’s health care.

Nevertheless, this opinion bears all the hallmarks of Justice Stephen Breyer’s penchant for compromise. As we pointed out in an earlier piece, it is Justice Breyer – not Justice Anthony Kennedy – who is now the swing vote in cases where the government wins below. And Justice Breyer, perhaps frustrated in his search for five votes, seems to be encouraging the parties to settle.

Justice Sonia Sotomayor, concurring in an opinion joined by Justice Ruth Bader Ginsburg, insisted that the Court’s decision “allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage” through the same insurance companies without notice from employers. The Zubik Court does not endorse the idea of a separate policy or the requirement that employees affirmative opt in, the two Justices say. In short, the Court is not requiring the government to agree to any settlement that would harm women. In fact, the government could retain the current accommodation. And if it does, Justices Sotomayor and Ginsburg rightly point out, “the Courts of Appeals remain free to reach the same conclusion” they did before on the legality of the government’s accommodation. For all but one circuit, that would mean upholding the government’s current regulations.

We will see Zubik in the Supreme Court again, most likely. When that happens, the Court may well be up to full strength, perhaps with the addition of a Justice nominated by President Obama or Hillary Clinton. If and when that happens, the Court should take the opportunity to reaffirm and clarify the principle that, while accommodations can often serve justice, they cannot be offered to religious citizens where the result would be harm to the religious freedom and equality of other citizens.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]