• Why Can’t We Be Friends? The Supreme Court Discovers an Unexpected Meeting of the Minds in Zubik v. Burwell
  • May 26, 2016 | Author: Timothy G. Verrall
  • Law Firm: Ogletree, Deakins, Nash, Smoak & Stewart, P.C. - Houston Office
  • Regardless of one’s preferred metaphor, the Supreme Court of the United States is adept at ducking, punting, and otherwise avoiding messy and socially divisive interpretive issues. Every once in a while, the parties even help the Court out. Facing the prospect of another evenly divided 4-4 decision on the controversial intersection between the Affordable Care Act’s (ACA) contraceptive care mandate and the Religious Freedom Restoration Act of 1993 (RFRA)— and after having administered some friendly arm-twisting to the parties following oral argument back in March—the Court found just such an exit strategy in Zubik v. Burwell.

    In a per curiam opinion, the Court sent 13 cases involving religious nonprofit organizations’ objections to the ACA’s contraceptive care mandate back to federal appeals courts for further consideration of the possibility of a mutually-agreed resolution of the consolidated cases. More specifically, the Court indicated that the unusual post-argument briefing it had ordered suggested that the parties had indeed identified a compromise that would allow cost-free access to contraceptive care to employees while avoiding any entanglement in the provision of that care by the religious nonprofit organizations that partnered to bring the original challenge.
    Zubik v. Burwell, Nos. 14-1418, 14-1453, 14-1505, 15-35, 15-105, 15-119, and 15-19, Supreme Court of the United States (May 16, 2016).


    Among other things, the ACA’s preventive care mandate requires most employers and health insurers to provide cost-free access to FDA-approved contraceptive care. The ACA’s regulations exempted churches from this mandate entirely and provided an opt-out process for other organizations with religious affiliations. Under this process, in order to opt out, religious organizations would notify their insurers, or sign and submit a form to the federal government, stating that they object on religious grounds to providing contraceptive coverage. Employees would then have access to contraceptive coverage directly through the organization’s health insurer or third-party claims administrator.

    Several religious nonprofit organizations argued that the contraceptive care mandate violated the RFRA, which bars the government from imposing a “substantial burden” on the exercise of religious beliefs unless the governmental interest in question is “compelling” and the means to achieve that interest is the “least restrictive” available. According to the organizations, the opt-out process inevitably and impermissibly involved them in the provision of contraceptive care, in violation of their religious principles, even though they neither paid for nor provided the care themselves. In the organizations’ view, participation in the opt-out process caused them to be complicit in the provision of the disputed coverage, and they therefore sought the same complete exemption from the contraceptive care mandate that was previously made available only to churches.

    The Supreme Court’s Decision

    In an unusual move, after having heard oral arguments in the case, the Court requested supplemental briefings from the parties to see whether a compromise position was possible. Many Court-watchers considered the request to be an implicit acknowledgement that the Court was deadlocked, and rather than leaving a patchwork of lower court decisions in place (as would have been the case with a 4-4 tie vote), the Court was seeking another path towards a final resolution.

    Having ascertained the direction of the wind, the parties apparently independently concluded that it would be possible for health insurers or third-party claims administrators to provide the required contraceptive coverage without involving the organizations in the process at all. In their supplemental briefing, the organizations clarified that “their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.” The federal government also confirmed that the opt-out process could be modified to accommodate the organizations’ newly clarified position. Suddenly finding itself without a “live” dispute to resolve, the Court vacated the judgments of the Third, Fifth, Tenth, and D.C. Circuit Courts of Appeals and remanded the cases for further consideration of the apparent compromise worked out by the parties, stating:

    Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.”

    The Court made a point of clarifying what it was not deciding, as well. Specifically, the Court did not decide whether the opt-out process really was a “substantial burden” under the RFRA, whether the provision of contraceptive care (cost-free or otherwise) was a “compelling” governmental interest (notwithstanding its strong implication that such care was compelling in Hobby Lobby v. Burwell), or whether the opt-out process was the “least restrictive” means possible to achieve that interest.

    Although it may be a bit unsatisfying to some of the partisans in the bleachers, perhaps a strategic punt was the best alternative after all.