It is unlikely that the Supreme Court's recent decision to return to lower courts cases challenging an accommodation to federal contraceptive coverage rules will result in a "'compromise,'" given the challengers' reluctance to doing so, columnist Linda Greenhouse writes in a New York Times opinion piece.
Greenhouse explains that earlier this year, the Supreme Court heard a consolidated lawsuit, Zubik v. Burwell, challenging the accommodation from several not-for-profits that hold themselves out as a religious and oppose contraception. According to Greenhouse, an eligible not-for-profit initiates the accommodation process by informing its insurer or the federal government of its objection, which then ensures the not-for-profit is not involved in paying for or directly providing the contraceptive coverage to which they object. Greenhouse writes that in Zubik, the petitioners argued that even with the accommodation they were "complicit in sin," saying their plans would "still be the basis for making birth control available."
One week after hearing the case, the Supreme Court "issued an unusual order, suggesting the outlines of a compromise," Greenhouse continues. She notes that under the proposal, the challengers "wouldn't have to provide any formal notice to anyone," but instead "would simply obtain an insurance plan that excluded contraceptives." Citing the Supreme Court order, she explains that "the 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.'"
However, according to Greenhouse, "[W]hoever on the court came up with the 'why can't we all get along' idea may have met his or her match in the determination of the religious nonprofits to treat any compromise as unacceptable surrender." She notes that while the Obama administration "readily agreed that the court's proposal of inferential notification could work," the challengers' reply brief "made clear that the only acceptable arrangement would be 'a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication.'" In other words, Greenhouse writes, "There could be no automatic enrollment, and women would have to learn about the separate coverage, sign up and, separate insurance card in hand, shop for a doctor who accepted it."
The challengers' proposal "is unacceptable to the Obama administration," Greenhouse continues, citing Solicitor General Donald Verrilli's comment during oral arguments that "the whole point was to make contraception coverage 'seamless' and integrated with the rest of a woman's health care."
Given the discrepancy between the not-for-profits and the federal government, Greenhouse writes that the "[high] court's reference last week to the 'substantial clarification and refinement in the positions of the parties' presents a puzzle." She continues, "What's been clarified, it seems to me, is how far apart the two sides really are." According to Greenhouse, "It's highly likely that the four federal appeals courts that rejected the nonprofits' position in the first place will reiterate the conclusion that nothing in the Religious Freedom Restoration Act [(PL 103-141)] or the First Amendment requires the government to go through the contortions being demanded of it."
Greenhouse highlights a lower court ruling in one of the cases in the appeal, Priests for Life v. Department of HHS, by U.S. Circuit Court Judge Cornelia Pillard. Greenhouse writes, "All the plaintiffs had to do to opt out of the obligation to cover contraception, Judge Pillard said, 'is express what they believe and seek what they want via a letter or two-page form ... That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations' compliance with law in the modern administrative state.'"
According to Greenhouse, "A valuable part of this opinion was the context Judge Pillard provided for understanding who the plaintiffs were (most, although not all, Catholic-related) and how broadly their claim to a religious exemption swept." Greenhouse cites Pillard's clarification that not-for-profits that hold themselves out as religious "provide many services that are not inherently religious" and "employ and enroll as students millions of adults, not all of whom are coreligionists or share ... [a] religious opposition to contraception.'"
Greenhouse draws attention to the "widespread misunderstanding that the case is about nuns, specifically the Little Sisters of the Poor." Greenhouse notes that Little Sisters of the Poor is "only one of 30 petitioners in the seven Supreme Court cases." She adds, "Granted, it's more compelling to hear about the travails of the Little Sisters .... than about the objection to contraception coverage held by the named plaintiff in the lead case, the Most Reverend David A. Zubik of the Diocese of Pittsburgh."
Greenhouse states, "Now that the cases are most likely back to square one, it's time for the administration and its supporters to recapture the narrative and make clear to a confused public that this is not a case about nuns." Rather, she concludes, "It's a case about women who should not, by reason of their particular employment, have to forfeit the right to comprehensive health care that the law makes available to other women in the work force" (Greenhouse, New York Times, 5/26).
