Commentary
It may turn out that the Supreme Court will succeed in its attempt to craft a way to make the Affordable Care Act’s birth-control mandate work in a way that more or less satisfies everyone. If that happens, fifty Roman Catholic experts on theology and ethics could be entitled to take at least some of the credit.
Their argument, in a significant brief filed in the seven cases before the Court in Zubik v. Burwell, was based entirely on moral theology, but it could work just as well as legal argument. That brief focused mainly on the concept of complicity in sin, and that is close to the core of the perception that seems to have led the Court last week to issue a call for new written arguments by both sides’ lawyers in the Zubik cases. The cases reached the Court on appeals by religious non-profit institutions with faith-based objections to birth control, at least in some forms.
As a legal gesture, the order is so unusual that it may not have any parallels in the Court’s history — with the possible exception of the call for expanded constitutional arguments in 1953 when the Court was reviewing the school desegregation case, Brown v. Board of Education.
In both situations, the Court appeared to have moved outside the four corners of the cases as lawyers prepared them and as lower courts decided them, and proposed on its own a different way to deal with the controversy. There is at least one key difference: in the Brown order, the Court asked lawyers to advise it on whether it had the power to do what it was contemplating, while the Justices in the Zubik cases simply assumed that they had the authority.
In the Zubik order, the Justices spelled out a middle approach that might avoid violating the Religious Freedom Restoration Act while at the same time avoid undermining the ACA’s promise of women’s cost-free access to contraceptives. Of course, its proposition was legal in nature. But because the Court was trying to work its way around religious objections, which RFRA puts front and center, the controversy definitely has theological implications, too. And, as will be seen, the Catholic moral theology brief went directly to that point, fully exploring two objections that are directly addressed in the Court’s order (intentionally in response to the theologians’ brief, or not).
What the Court spelled out, in what it called an “example” of what it was pondering, looks very much like what it could regard as “the least restrictive means” to accomplish both of its goals in deciding Zubik. Among all nine federal appeals courts that have ruled on the ACA’s contraceptive mandate, only one found that the existing ACA regulations were not “the least restrictive means” of carrying out the mandate at religious non-profit institutions, and the Zubik order shows a concern among at least some of the Justices about that.
Under RFRA, if a federal government program or activity causes a significant burden on religious belief or exercise, it still can be justified if it is “the least restrictive means” to carry out a “compelling government interest.” In the new Zubik order, the Court assumed that the ACA mandate did burden the non-profits’ religious beliefs and that the government had a sufficient interest in assuring access to contraceptives. So, what might the “least restrictive means” be? That is what lawyers apparently must seek to answer when briefs are filed, beginning with the first round of simultaneous filings next Tuesday and with both reply briefs due April 20.
As scores of religious non-profit hospitals, charities, and colleges pursued their court challenges to the ACA contraceptive mandate all across the country, their religious grievances grew in intensity as their lawyers tried to gain for them a complete exemption from that requirement. (Faith-based religious groups engaged directly in worship are totally exempt. Many religious non-profits’ activities are not confined to worship.)
At least some of them seemed to be content when the Supreme Court in 2014 spared a religious college from having to file a prescribed government document in order to be free from any direct role in providing access to birth control for its employees and students. As an alternative, the Court said, it could simply send a letter to government officials noting its religious objection to carrying out the mandate themselves, directly.
But it was not long, as the challenges continued to unfold, before lawyers for the religious non-profits were arguing that even claiming to be free of the mandate itself amounted to triggering the flow of contraceptives to their employees or students. And then the argument became that it also was not acceptable for the government to use the institutions’ existing health plans as the source of contraceptives.
It is that last point that lawyers for the non-profits stressed at the March 23 hearing in the Supreme Court, contending that the government was “hijacking” the institutions’ own health plans for the pass-through of contraceptives under government ACA regulations. Several of the Justices picked up on the “hijacking” argument. Justice Samuel A. Alito, Jr., for example, told the government’s lawyer: “It’s their plan, and you admit that you are putting something into their plan that they object to on religious grounds….Isn’t the insurance policy the way in which the employer provides the benefit that are available under the plan?” The government lawyer questioned the first of those comments, but conceded the second.
At this point, one can turn to the brief filed by the fifty Roman Catholic theologians and ethicists. Here is the way that document sums up the current “complicity in sin” argument of the religious non-profits: “Petitioners in these cases have asserted that it would violate their religious consciences to authorize anyone to arrange for or make payments for contraceptives, sterilization, and abortifacients; to take action that triggers the provision of such coverage; to maintain a health plan or ongoing insurance relationship through which the government arranges to provide such coverage; or to participate in a scheme, the sole purpose of which is to provide such products.”
That, the brief argues, in Catholic theology that comes out of the teachings of that denomination “since at least the seventeenth century.”
How, then, does that summary relate to the Court’s new briefing order for Zubik? For that analysis, the focus should be on a particular phrase in that summary, the religious objection to “maintain[ing] a health plan or ongoing insurance relationship” as the channel for the contraceptives. Thus, in the ACA context, the objection is to the use of the non-profits’ existing health plan and their existing contract with an insurance company to provide that plan.
The Zubik order suggests, instead, that a legal veil be brought down between between the non-profits and the availability of contraceptives as to both of those sources of religious objection. It proposes that a non-profit enter what appear to be a new contract with the provider of its plan, and keep that contract free of any provision on contraceptives. Thus, their existing plan presumably goes away as the channel for contraceptives. And the order proposes that the insurance company independently provide access to contraceptives with absolutely no involvement by the non-profit. Thus, there is supposedly no longer “an ongoing relationship” that provides the channel for contraceptives.
Will that do it for the non-profits, on the one hand, and for the government, on the other? Leave aside for now that the non-profits would have to enter new contracts for new health plans, and the government would have to write new ACA regulations; both of those could be managed, although it might take time for either or both to actually happen.
But is the veil thick enough to meet the religious protest, and is the government going to be content with a new method of access that may require women to consult two doctors or have two insurance cards — separating their coverage for other health needs from their coverage for birth control?
That’s what the public, and the Justices, will find out on Tuesday, when each side files a brief, limited to twenty-five pages for the non-profits and twenty pages for the government. By Supreme Court document standards, those will be short, indeed. It won’t take a reader long to discover each side’s bottom line.
It is important to stress that neither side has any legal obligation, as such, to accept the Court’s suggestion. There will be strong incentives to do so, though. Lawyers experienced at the Court feel a keen obligation to work with the Court when it asks for their help or reaction.
Although the two sides’ separate briefs are to be filed at the Court at the same time, the chances that neither side knows anything at all about what the other is planning to say are probably not realistic. The three key lawyers involved — Washington, D.C., attorneys Paul D. Clement and Noel Francisco for the non-profits, Solicitor General Donald B. Verrilli, Jr., for the government — know each other personally, and it would surprise no one if they have been talking with each other about what to do. Their clients, too, no doubt will have something to say about what goes into those new documents.
No one outside the Court can say, with any confidence, what the Court plans to do with the new briefs. And, for the Court, if the idea the Justices put out last week is rebuffed, the Justices may wind up splitting four to four, and deciding nothing definitively, leaving intact a split among lower courts on the legality of the ACA birth control mandate. If the two sides should happen to agree to the idea, as is, the cases then might simply go away, settled without a decision by the Justices. Two sides with a dispute before the Court do not need its permission to settle.
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