Supreme Court's contraceptive compromise might work, parties say
The U.S. government isn’t enthusiastic about the U.S. Supreme Court’s suggested compromise that would allow religiously affiliated nonprofits to opt out of contraceptive coverage for their employees. But the administration said in a new brief that it could accept the idea, provided certain conditions are met.
The Supreme Court called for briefing on its suggested alternative on March 29 after oral arguments in the case, Zubik v. Burwell, suggested the court could be split in a challenge to the opt-out procedure. Supreme Court reporter Lyle Denniston has posts on the briefs at SCOTUSblog here, here and here, and at the Constitution Daily blog. How Appealing links to additional coverage, including this story by the Washington Post.
According to the Constitution Daily post, the parties’ “initial responses were filed at the court on Tuesday evening, and the gulf between them was still much in evidence.”
Currently, religiously affiliated nonprofits that don’t want to provide contraceptive coverage have to file a form indicating their religious objection. At that point, the insurance provider and the federal government have to provide the coverage. The religious nonprofits say they become complicit in providing coverage by filing the form, violating their rights under the Religious Freedom Restoration Act.
In its unusual call for briefs, the Supreme Court asked the parties to consider a situation in which the nonprofits would tell their insurers they don’t want to provide contraceptive coverage when they initially obtain insurance for their employees. No separate notice would be required. The insurer would then inform the employees that it was providing the coverage at no cost.
Solicitor General Donald Verrilli told the court the administration still believes the present system does not violate RFRA, but it would accept the court’s suggested change if women could still obtain contraceptive coverage, and if the court is able to halt additional suits through a definitive ruling.
Groups challenging the opt-out procedure said they would agree to a compromise if the coverage provided was truly independent of the nonprofits, and if they were truly left out of the process. Their RFRA objections would be addressed, the groups said, if contraceptive coverage was provided through a separate policy, a separate enrollment process, a separate insurance card and a separate payment source.
