Health Reform WK-EDGE High Court requests move toward the middle in divided contraception argument
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Thursday, April 21, 2016

High Court requests move toward the middle in divided contraception argument

By Jenny Burke, J.D., M.S.

Two opposing sides in one of the most controversial cases this year are revealing to each other just where there might be room for compromise, in response to a rare request by the Supreme Court. A supplemental briefing was requested in Zubik v. Burwell meant for each side to address how contraceptive coverage could be obtained by the employees of a religious nonprofit without any involvement from the employer. The two-page order essentially tells both the religious institutions and the Obama Administration to find a new solution to the dispute.

Initial responses were filed with the Court on April 13, 2016, with neither side appearing ready to fold. The federal government made it clear it wants the Court to move on to find a way to uphold the mandate as legal under the federal Religious Freedom Restoration Act (RFRA), contending that the accommodation to the birth control requirements birth-control rules already go far enough to accommodate the non-profit institutions’ religious beliefs. The religious non-profits made it equally clear they want the existing plan found invalid under RFRA. They argued that the federal government could easily grant these organizations an exemption and women could simply find other alternatives to obtaining birth control, via the government itself or perhaps health insurance exchanges.

Responses. Although the Supreme Court may not release an opinion in the case until late June, it’s possible that once response briefs are filed, exactly how far each side is willing to compromise may be visible. The briefs are both due on April 20. Even so, it isn’t apparent from the Supreme Court’s order which direction the Justices are leaning. Although there were no dissents from the order, it does not necessarily follow that all eight of the Justices were in agreement. With a potential four-to-four split, the battle may be far from over.

Zubik. Initial oral arguments in Zubik v. Burwell were heard by the Court on March 23, 2016. The issue before the Court is whether the HHS contraceptive coverage mandate and its “accommodation” allowing religious employers to opt out of providing coverage violates RFRA and the employers’ religious liberty by requiring employers to self-certify their status or provide notice that they wish to opt out (see High Court weighs government’s interest in protecting women’s health against hijacking religious organizations’ insurers, March 24, 2016).

Stay tuned to Health Reform WK-EDGE for further coverage in the contraceptive mandate battle.

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