Facing the distinct possibility of a 4-4 tie in the contraception coverage case before the Supreme Court, justices issued a rare order directing each side to submit briefs outlining a potential compromise.
Opening arguments for Zubik v. Burwell began last week in a case that will decide whether the government's exemptions to the Affordable Care Act's birth control coverage mandate for religiously affiliated organizations is still a violation of a decades-old religious freedom law. Following the Supreme Court case involving Hobby Lobby, the government built in exemptions to the mandate, allowing organizations to fill out a two-page form notifying the government of their objection, which would defer the cost of coverage to the insurance company.
Religious petitioners argue the exemptions don't go far enough, forcing organizations to condone an act they define as a sin.
Tuesday's order indicates the Supreme Court, which has eight members since the death of Antonin Scalia in February, is looking for a deal that would placate both sides and avoid what appears to be a 4-4 deadlock. Specifically, the Court wants to explore ways employees could obtain contraceptive coverage on their own "in a way that does not require any involvement of petitioners." The Court asked both sides to file briefs by April 20.
The Court outlined one possible scenario in which religiously affiliated organizations would inform their insurance company they do not want their health plan to include contraceptive coverage. The insurance company would independently notify employees that they are entitled to cost-free coverage even though it is not included in their employer-sponsored plan. This proposed solution would essentially eliminate the two-page form and the federal government as a middleman.
An attorney for the religious objectors, Mark Rienzi, called the order "an excellent development," according to the Associated Press, an indication that the Court believes "the government's current scheme forces [employers] to violate their religion."
In last week's opening arguments, several conservative justices appeared unfamiliar with the requirements of the ACA, pushing government lawyers to explain why women couldn't simply obtain a separate birth control plan on the federal health exchanges. When Chief Justice John Roberts posed this scenario, Solicitor General Donald Verrilli, representing the government, argued it would require Congress to alter the current law.
Even if the law was changed to allow for contraceptive-only plans, it would create a "jerry-rigged separate channel to get contraceptive coverage," which runs counter to the law's purpose of providing birth control coverage "without any barriers."
Previous studies have indicated the ACA's birth control provision lowers healthcare costs for women by $1.4 billion.
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