Decorative Scales of Justice in the CourtroomWritten by Don Byrd

[UPDATE 4/13: The parties have filed responses. Religion Clause offers a nice synopsis. Also see SCOTUSblog analysis from Lyle Deniston.]

In an unusual and unexpected move, the U.S. Supreme Court today asked for additional briefs in the contraceptive mandate cases, consolidated as Zubik v. Burwell, which they heard last week. The Court seems to be investigating how a compromise solution might work between the government’s desire to facilitate free contraceptives to all women, and religious organizations that provide insurance to employees but object to participating in the provision of services they object to on religious grounds.

The Court’s order states, in part:

The parties are directed to file supplemental briefs that address 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. . . . 

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, 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. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ 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.

The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing…..

According to a Wall Street Journal report, an attorney for the Little Sisters of the Poor, one of the plaintiff organizations in this group of cases, describes the order as “an excellent development.”

[UPDATE: Also, read this editorial on the Order from veteran Supreme Court reporter Linda Greenhouse, who believes the “compromise” sought here could counter the claims of the plaintiffs that RFRA “mean(s) anything they say it means.”

And this piece in the Atlantic from law professor Garrett Epps, which questions whether the Court’s proposed “solution” would be acceptable to both sides, or even allowable under the ACA.]

Responses are due on or before April 12.