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By BJC Staff Reports

WASHINGTON — In an unusual development, the U.S. Supreme Court asked for additional briefs in the contraceptive mandate case six days after hearing the oral argument.

Scholars and court-watchers say the development is likely an indication that the Court is seeking a way to avoid a 4-4 decision in the consolidated cases known as Zubik v. Burwell. Such a ruling would leave the lower court decisions in place and set no national precedent.

In Zubik, religiously affiliated nonprofits – such as charities, hospitals and universities – challenge the government’s accommodation procedure designed to allow them to avoid paying or contracting for contraception. The groups say the accommodation, which requires written notification of a religious objection, makes them complicit in the use of the contraception they find objectionable.

The March 29 order asked the parties to file new briefs addressing whether and how their employees can obtain contraceptive coverage through the organizations’ insurance companies “in a way that does not require any involvement of [the organizations] beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The Baptist Joint Committee for Religious Liberty filed a brief in the case defending the sufficiency of the government’s current religious accommodation. The BJC brief argues that the exemption procedure does not amount to a substantial burden on the exercise of religion, which is the legal standard in the Religious Freedom Restoration Act. While petitioners may have sincerely held beliefs against contraception, the brief explains that “substantial to the believer is not inevitably the same as substantial in law.”

The BJC brief makes clear the importance of free exercise exemptions and points out that the government must have the ability to enact exemptions that apply to specific situations.

In the order for supplemental briefs, the Court asked the parties to consider a hypothetical example that would require the employers to only tell their insurance company they do not want the objectionable coverage when signing up for insurance, eliminating the need for additional written communication to the government. The BJC brief mentioned a similar example, noting that – based on the far-reaching arguments made by the groups – even such a plan would likely be objectionable to them.

Despite continuing differences, the first round of supplemental briefs indicate the parties are considering the Court’s hypothetical in a potential resolution. The nonprofits’ brief asserts that a similar process would satisfy their RFRA objections: allowing their insurance company to provide an independent contraception-only plan to their employees 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.” This differs from the current accommodation by relieving the nonprofits of the requirement to subsequently object to the coverage and requiring the employees to undergo two separate enrollment processes. The parties will file their final Zubik briefs on April 20.

Coming up with an alternative method would require changes to existing government regulations, according to Douglas Laycock, a religious liberty advocate and law professor at the University of Virginia who authored the BJC’s brief.

“This order implies the justices are looking for a way to get enough votes on the Court to uphold the delivery of contraception coverage,” Laycock said.

People on both sides of the case found the request encouraging: advocates for the nonprofit organizations implied that the Court felt the accommodation was not sufficient, and many supporting the government saw it as a way to make sure women can obtain contraceptives with no out-of-pocket costs.

During the March 23 oral argument, the eight justices appeared divided, raising the likelihood that they would deadlock over the challenge by religious nonprofits. The BJC’s brief was mentioned several times during the argument.

The justices could decide to hear the case again when they are back to full strength — but with Senate Republican leaders vowing not to consider President Barack Obama’s nomination of federal appeals court Judge Merrick Garland, that could take another year or more.

From the April 2016 edition of Report from the Capital. Click here to view the issue as a PDF document.