About that Order for Supplemental Briefing in Zubik v. Burwell

This post originally appeared on Bill of Health. Learn more about Zubik v. Burwell here

This afternoon the Supreme Court requested supplemental briefing in Zubik v. Burwell and the other challenges to the contraceptive-coverage accommodation, as follows: “The parties are directed to file supplemental briefs that address 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.”

And in so doing, the Court offered a proposal of its own:

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

Although it’s foolish to read tea leaves, read them I shall:

1. I think that this is a decent sign for the government, at least compared to how the oral argument went last week. The Court (and presumably Justice Kennedy) seem to think that the challengers’ proposed alternatives to the accommodation (create separate, contraceptive-only policies and require women to seek them out; expand Title X clinics; and other Rube Goldberg-schemes) harm women by preventing them from receiving seamless and convenient coverage. If the Court thought that those other alternatives were sufficient, then it wouldn’t be looking for a way to ensure that women retained accommodation-style seamless coverage.

2. This order also puts the religious objectors in even more of a bind. If they respond that even the Court’s proposal substantially burdens their religious exercise, then it becomes even clearer that they object to the independent conduct of third parties; under the Court’s proposal objectors wouldn’t have to do anything other than tell their insurance companies what coverage they want and what coverage they don’t want. And so if the objectors oppose even this alternative, then the government can throw up its hands and say, “We told you that they’re actually trying to block the independent action of third parties and prevent women from getting seamless coverage through any means.”

3. It’s also important to remember that whatever rules apply to the nonprofit objectors in these cases will apply to objecting for-profit corporations, including Hobby Lobby, who have been offered the same accommodation as nonprofit organizations. So we’re talking multiple tens of thousands of employees.

4. Finally, although this order creates a bit more reason to be optimistic about the accommodation, it’s still a sign of how far we have to go before reproductive care is treated like other forms of care. It’s virtually impossible to imagine that the Court would be bending over backwards to facilitate evolving objections to the provision of coverage for vaccines, blood-pressure medicine, colonoscopies, or any other form of medical care used regularly by, say, older men.

(For more on Zubik, check out my summary of the oral argument.)

Follow Greg Lipper online at @theglipper