On May 16, the Supreme Court sent Zubik v. Burwell back down to the lower courts in pursuit of a compromise regarding the accommodation of the religious objections of the petitioner nonprofit organizations to covering contraceptives under the Affordable Care Act’s preventive services mandate.
In a brief unsigned per curiam order, the Court vacated and remanded seven appellate court decisions upholding the regulatory accommodation—rejected by the Zubik plaintiffs—that the Department of Health and Human Services (HHS) has offered objecting nonprofits: Under that accommodation, these entities could notify HHS—or their health insurers or third party administrators (TPAs) of their self-insured plans—of their objection, in which case they would have no further obligation to provide contraceptive coverage; instead, the government would ensure that the insurers or TPAs would provide the coverage to the organizations’ employees or students.
At the same time that the court vacated and remanded the decisions it was reviewing in Zubik, it granted certiorari to and vacated and remanded decisions of the Fifth, Seventh, and Eighth circuits, which also addressed the contraceptive issue. The Eighth Circuit decision in Sharpe Holdings v. Burwell (discussed here) was the only appellate court decision invalidating the HHS regulation.
The Court’s Order
Following oral argument in the case in late March, the Court had asked the parties to brief 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.
The Court’s May 16 order reads the responses of the plaintiffs and of the government as indicating that some compromise may be possible:
Petitioners have 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 Government has confirmed that the challenged procedures “for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
Based on its view that common ground existed between the parties, the Court vacated the decisions of the Third, Fifth, Tenth, and D.C. Circuits to afford the parties:
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 recognized that while there might be areas of disagreement remaining between the parties, the importance of these disagreements was uncertain and that it was more appropriate for the issues to be resolved by the courts of appeal than by the Supreme Court.
The Court explicitly expressed no view on the merits of the case, specifically on whether the petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the government’s current approach is the least restrictive means of serving its interests. These are the key issues raised in the case under the Religious Freedom Restoration Act, the statute under which the plaintiffs had challenged the accommodation.
The Court concluded its brief opinion by expressly stating that:
Nothing 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.”
The Court further noted, however, that the government was already on notice that the parties of the lawsuit objected to providing the coverage themselves on religious grounds, and could act to ensure that the provision of contraceptive coverage without requiring a further notice from them. The government could not, therefore, penalize the petitioners for failing to provide the notices required by the regulation.
Justice Sotomayor’s And Justice Ginsburg’s Concurrence
Justices Sotomayor and Ginsburg issued a brief concurring opinion emphasizing the fact that the Court was not deciding the merits of the case. More specifically, they disapproved of the Eighth Circuit’s decision in Sharpe, which had interpreted earlier Supreme Court orders as rulings on the merits as its basis for rejecting the HHS accommodation. As noted earlier, the Eighth Circuit decision was vacated and remanded by the Court.
They further stated that they joined the Court’s opinion because it:
allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage “‘to petitioners’ employees, through petitioners’ insurance companies, without any . . . notice from petitioners.’”
The Court’s order does not, they contended, allow for provision of standalone, contraceptive-only policies, for which the petitioners had argued. In their opinion, standalone coverage as opposed to seamless coverage would impose an unacceptable barrier to access to mandated preventive services.
Unresolved Issues
The Court’s order avoids a four-four affirmance of the lower court orders which would have left in limbo the legality of the contraceptive requirement indefinitely. On the other hand, it leaves unresolved a number of important issues.
First, and most obviously, the opinion does not resolve the merits of the case — the substantial burden, compelling governmental interest, and least restrictive alternative issues. The Court’s opinion suggests that, at minimum, the least restrictive alternative issue needs a second look. But the opinion leaves open the possibility that the circuits will again split on the merits, merely postponing the resolution of the issue.
Second, the opinion would seem to overstate the degree of consensus between the parties as to the existence of a least restrictive alternative for addressing the contraceptive issue. Although the initial round of supplemental briefing suggested, as the Court hopefully states, the possibility of consensus, the second round of briefing suggested that the parties were further apart — that the “seamless coverage” the government contends is necessary was not acceptable to the petitioners, who insisted on the standalone coverage rejected by Justices Sotomayor and Ginsburg, if not the Court.
Third, the Court’s order ignores the intractable question of how to provide contraceptive coverage to employees of employers that offer coverage through self-insured plans. Many of the petitioners in fact provide coverage through self-insured plans managed by TPAs, rather than insured coverage. In both rounds of briefing the petitioners strenuously objected to the government providing contraceptive coverage through their self-insured plans. HHS’ current accommodation regulation would require the TPAs of religious organizations to provide contraceptive coverage (although the government does not have a way of requiring church plans to do so). The Court’s order provides no way forward for resolving this issue.
In sum, the Court’s decision leaves the key issues in the contraceptive litigation unresolved, and they will likely remain unresolved through the remaining months of this administration.
from Health Affairs BlogHealth Affairs Blog http://ift.tt/1XfYiIJ
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