SCOTUS: Zubik v. Burwell

[Content Note: War on agency.]

Rather than handing down a ruling on the birth control case Zubik v. Burwell yesterday, the Supreme Court instead handed down a very curious order requesting further briefing. Ian Millhiser explains:

Last week, at oral arguments in this case, the Court appeared likely to split 4-4 in this case — potentially creating a chaotic situation where a woman's right to birth control coverage could depend upon which state she lived in and which regional appeals court considered her employer's obligations under the law. Tuesday's order appears to be an effort to warn off that circumstance.

The order instructs the parties in Zubik and a bevy of related cases 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" ("petitioners" in this case, refers to the employers who object to birth control).

...[The alternative solution proposed by the Court] would require a religious objector to "inform their insurance company that they do not want their health plan to include contraceptive coverage" at the time when they initially contract with the insurance company. If that seems like a mighty fine hair to split, that's because it is. It's not entirely clear why an employer who is upset by the government's form would suddenly feel better because they are allowed to notify their insurance company of their objection in a different way.

If the Court is, in fact, willing to accept this solution, however, that could be a win for the government — and for women seeking access to birth control.

...The catch, however, is that it may not be possible for the federal government to put such a solution in place, at least without a change to federal law. Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act (ERISA). The Obama administration found authorization for its current rules in the existing ERISA statute, but it is not entirely clear that current law will enable them to move forward with the idiosyncratic solution described in the Supreme Court's Tuesday order. Indeed, it is likely that one reason that the Court asked for additional briefing in this case was to determine whether the government has the authority to implement the justices' preferred solution under ERISA.

All of this, of course, could be avoided if we could all just agree that if you have a religious objection to birth control, don't use it yourself, but your personal belief is irrelevant in determining what sort of coverage you are required to provide to your employees who may not share those beliefs.