Government Concedes That HHS Contraceptive Accommodation “Could Be Modified”

(photo: Photo Credit: Farragutful, CC BY-SA 3.0, via Wikimedia Commons)

After years of litigation over the Health and Human Services contraceptive mandate, the Obama administration signaled yesterday that it could make further changes to the controversial accommodation it provided the Little Sisters of the Poor and many other religious nonprofits.

Could this new admission undermine the government's case? That's the question now.

When March 23 oral arguments in Zubik v. Burwell revealed weaknesses in the government's case, the justices unexpectedly issued a March 29 order that directed the both sides to offer fresh solutions to the impasse.

The plaintiffs and the government were each told to provide a formal response to  the following question:

Whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.

In its supplementary brief issued yesterday, the government said the accommodation “could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation.” 

That striking admission, accompanied by a lot of grumbling, raised a red flag for Michael McConnell, a leading authority on religious freedom at Stanford University law school. In comments cited in an April 13 post on The Volokh Conspiracy blog at the Washington Post, McConnell said the justices' question “put the government in a bind. If it answered ‘yes,’ it would effectively be admitting to a RFRA violation. But if the government said ‘no,’ it would be appearing unwilling to work with the Court on a solution that will satisfy both sides.”

It should come as no surprise that the brief submitted by the Little Sisters' lawyers adopted a brighter tone.

“The answer to [the justices'] question is clear and simple: Yes,” read the brief, which applauded the court's apparent desire to explore new options.

While the government's allies have framed the Little Sisters' objections as an attempt to impose their religious beliefs on their employees, and so bar access to contraception, the brief dismissed the political spin.

So long as the coverage provided through these alternatives is truly independent of petitioners and their plans—i.e., provided through 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—petitioners’ RFRA objections would be fully addressed.

The court had requested briefs that addressed a solution for employers that contracted with insurance carriers, yet religious nonprofits' brief noted that many plaintiffs had self-insured or had so-called “church plans.” Even so, it made clear that a solution could be found. For example, the government could “require or incentivize” commercial insurance companies to provide plans that offered free contraceptives without involving the Little Sisters.

The larger question at issue is whether the HHS mandate violates the Religious Freedom Restoration Act (RFRA). That 1993 federal law directs the government not to impose a substantial burden on religious freedom without a “compelling” state interest. When that interest has been established, the government must use the “least restrictive” means of furthering its interest. 

“The substantial burden that the government’s current arrangement undoubtedly places on petitioners’ religious exercise thus is simply not the ‘least restrictive means of furthering [a] compelling governmental interest,’” read the brief submitted by their religious nonprofits.

That fact is likely responsible for the cautious, grumpy language in the government's brief. An April 12 post on SCOTUSblog that discussed the government's brief was headlined: "U.S. would accept modest change on birth-control mandate — warily".

So why did the justices agree to issue this new order in the first place? 

At first, liberal legal experts suggested that the order reflected  the court's desire to avoid a 4-4 decision. But Stanford's McConnell said that argument didn't make sense, as the court's liberal wing could have sent the cases back to the lower courts—a move that would generally benefit the government. "Why explore alternatives unless there are doubts among the pro-government ranks on the Court?" he asked.

Meanwhile, McConnell is very clear on one point: “The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.”

Both sides now have until April 20 to provide reply briefs responding to the ones released yesterday. Stay tuned.