Supplemental briefing was requested by the Supreme Court in Zubik v. Burwell to address how contraceptive coverage can be obtained by the employees of a religious nonprofit without any involvement from the employer beyond the employer’s decision to provide health insurance—without contraceptive coverage—to its employees. The court’s order suggests that because the religious nonprofits are objecting to undertaking an action which leads to their employees obtaining birth control, the parties should consider whether there is an alternative situation where contraceptives can be provided to a religious nonprofits’ employees without requiring the employer’s action or involvement.
Zubik. The Supreme Court heard oral arguments in Zubik v. Burwell on March 23, 2016. The case asks the court to decide whether the the HHS contraceptive coverage mandate and its “accommodation” allowing religious employers to opt out of providing coverage violates the Religious Freedom Restoration Act (RFRA) and the employers’ religious liberty by requiring those 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)
Hypothetical. The order for supplemental briefing provides an example of the kind of accommodation the court wants the parties to consider. The court asked the parties to imagine a situation where a religious nonprofit enters into an insurance contract to provide its employees with health insurance and informs its insurer that it does not wish for its plan to include coverage for the types of contraceptives the employer finds objectionable. In the court’s hypothetical, the employer would not be legally required to submit a separate notice to the insurer, its employees, or the government in order to avoid the contraceptive mandate. Then, the insurer—aware that the employer is not going to provide coverage—would separately inform employees that it will provide cost-free contraceptive coverage, which is not paid for by the employer and is not covered under the employer’s health plan.
Split decision. Wolters Kluwer interviewed David M. Kaufman a partner in the health care practice of Freeborn & Peters LLP (Chicago) to better understand why the justices asked the parties for the supplemental briefs. Kaufman said “the Justices appear to be seeking a compromise to avoid a 4-4 decision, which would affirm the decisions of the lower federal circuit courts.” He noted that because the lower courts are split, a 4-4 decision could result in an outcome where “religious non-profit organizations from different regions of the country would be subject to different legal requirements.”
Statutory basis. Professor Jeffrey Shaman, Vincent de Paul Professor of Law and Faculty Director of the Center for Public Interest Law at DePaul University School of Law, told Wolters Kluwer that the supplemental briefing request suggests the justices are “looking for a narrow statutory basis for deciding the case, in order to avoid deciding the case on a constitutional grounds.” Kaufman noted that “the Court may be requesting supplemental briefing so the parties can address legal and related issues associated with alternatives to the accommodation process for the Court to consider.”
Accommodation. When asked whether the court’s hypothetical accommodation would still bring objections from religious nonprofits Shaman said “the religious nonprofit organizations do not want any involvement at all in providing contraceptive coverage for their employees. They do not want to certify anything that would lead to contraceptive coverage and in all probability would object to an alternative plan that would require their involvement in any way.”
Attorneys: David M. Kaufman (Freeborn & Peters LLP). Jeffrey Shaman (DePaul University School of Law).
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