It seems that the Supreme Court is deadlocked in considering Zubik v. Burwell, the case in which a disparate group of challenges by religious non-profits against the contraceptive mandate in Obamacare have been consolidated. These groups object to the accommodation that the Obama administration created for them under the law, which requires employers to provide health insurance that covers birth control. These groups suddenly want to have nothing to do with that part of their employees' health, even if it means nothing more than filling out a form to say so, and so sued. Oral arguments were heard last week and the court issued a confusing order Tuesday, seeking further briefs.
The justices asked the parties to "file supplemental briefs that address whether and how contraceptive coverage may be obtained by petitioners' [employers] 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." They provide this scenario:
[T]he 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.
ThinkProgress's Ian Millhiser says this is "a mighty fine hair to split" from the current rules—will an organization feel better about informing the insurer than the government? If an employer is already contracted with an insurer, what does it do? Does it have to initiate the discussion mid-contract? This would still be an administrative burden for the organizations, but would they feel their religious freedom is intact because they aren't dealing with the government in raising this objection?
This gets back to one of the main questions the liberals on the bench had in oral arguments: Where do the objections end? Justice Sotomayor asked: "If we are not asking you to do anything except identify yourself, and if who is going to do the action is either the government or a third party, that that's the balance that we have struck. That it's not a substantial burden if someone else is going to do the act that you're objecting to." The accommodation now exists that all they have to do is identify themselves either to government or a third party, saying they don't want to provide the coverage. Someone else is doing the covering. It's hard to see how the proposal put forward in this request from the court really differs. And that might be the point, if the liberals were a part of this request for briefs: They could be trying to make the point to a swing vote like Anthony Kennedy that there is nothing that these groups won't object to.