SUPREME COURT HEARS CONTRACEPTIVE COVERAGE CASE

On March 23, 2016, the Supreme Court heard oral arguments in Zubik v. Burwell, a group of cases in which religious nonprofits are challenging a government-designed workaround to the Affordable Care Act (ACA) requirement that employers cover birth control for their employees.

As a result of the oral arguments, the Supreme Court ordered the parties to file supplemental briefs for the Supreme Court to review. The supplemental briefs are supposed to address whether and how contraceptive coverage may be obtained by employees through their insurance companies in a way that does not require any involvement of the employers.

The Supreme Court’s order is in response to the religious organizations’ argument that the contraceptive coverage mandate violates the Religious Freedom Restoration Act (RFRA). The argument is based on the organizations’ position that the accommodations approach requires them to facilitate providing contraceptive coverage, which violates their beliefs.

As a possible solution, the Supreme Court suggested that the nonprofits could tell their insurers that they don’t want their plans to include contraception coverage when they first contract with them. The insurers would then directly notify the nonprofits’ employees that they could obtain free contraception coverage through the insurer, even though the employers do not wish to offer it in their plans.

The Supreme Court hopes to receive additional suggestions from the parties through the supplemental briefs.

It is not a standard practice for the Supreme Court to ask for supplemental briefs after hearing oral arguments. This request could indicate concern that a decision now would result in a 4-4 split. A split vote would defer the law to the states, which could lead to inconsistency and confusion.

The briefs are due on or before April 12, 2016, and responses to the briefs by opposing parties are due on or before April 20, 2016.