In new court briefs, a group of religious employers and the federal government both say they’re open to a compromise in the case regarding the Affordable Care Act birth control mandate that has landed them before the U.S. Supreme Court. Each side, however, has a different picture of what a resolution would entail.

Justices in late March ordered both sides to provide new briefs in Zubik v. Burwell , a religious freedom case that centers on the ACA provision requiring copayment-free health care coverage for contraception. The high court wants to know whether and how contraceptive coverage could be obtained by employees of religious nonprofits through their health plans in a way that does not require employer involvement.

For the federal government, Solicitor General Donald B. Verrilli Jr. wrote in an April 12 brief that an alternative to the current accommodation could be acceptable, but only if the affected women still receive seamless birth control coverage and if the resolution finally ends litigation over the issue.

“A decision requiring a modification to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient, would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled,” Mr. Verrilli wrote.

The plaintiffs – part of seven consolidated cases that include a Catholic bishop and an order of nuns – also expressed willingness to compromise, but only if they can be fully excluded from the process.

“There are many ways in which the employees could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the court’s order,” plaintiffs’ attorney Paul D. Clement wrote in his brief. “And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs.”

The ACA’s current accommodation applies to organizations that oppose coverage for contraceptives but are not exempted entities, such as churches. The plaintiffs argue that the opt-out process makes them complicit in offering contraception coverage indirectly. Forcing them to cooperate with the accommodation violates their rights under the federal Religious Freedom Restoration Act, according to the plaintiffs.

The government contends that the exception does not impose a burden on the groups and that courts should not disregard the interest of employees who may not share their employers’ religious beliefs. The 8th U.S. Circuit Court of Appeals struck down the accommodation twice, ruling that forcing organizations to offer contraceptive coverage – even indirectly – violates their religious rights. The 8th Circuit’s decisions are at odds with rulings by the 2nd and 5th Circuit courts.

Supreme Court arguments were heard March 23, and the justices appeared split over the accommodation’s constitutionality. Rather than employers having to provide separate written notice to the government to become exempt from the coverage regulations, justices proposed that the plaintiffs could instead “inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds.” The insurance companies would then separately notify employees that they will provide cost-free contraceptive coverage, and that such coverage is not paid for by their employers nor is it offered through their employer’s health plan.

The court’s suggestion could work for employers that contract with third-party insurers, but not for employers that self-insure and who rely on third-party administrators, Mr. Verrilli wrote. In this context, the current accommodation is necessary given the requirements of the Employee Retirement Income Security Act.

Attorneys are required to issue additional briefs by April 20 reacting to the other’s position. A decision in the case is expected by June.

The Feb. 13 death of Justice Antonin Scalia could mean a 4-4 decision in the case. If such a division occurs, the lower court rulings would stand. The justices could choose to rehear arguments at a later date.

On Twitter @legal_med


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