Kickin’ And Screamin’: Birth Control Foes Resist SCOTUS On Obamacare


If an unexpected order the Supreme Court issued in an Obamacare case could be seen as a last ditch effort to avoid a four-four split, the challengers in the case do not look too eager to play along.

Both the U.S. government and the religious organizations suing it weighed in on what seemed to be a compromise proposal by the Court in the case — in which religious organizations are objecting to the accommodation offered to them as a part of Obamacare’s contraceptive mandate — and neither side was too happy with it.

But, while government begrudgingly signaled it would accept the tweaks to the current workaround that the Supreme Court floated, the challengers in the case doubled down on their arguments that female employees should do the extra work to get birth control coverage if their employers object to it and that coverage must come through a separate “contraceptive-only” plan. Their posturing isn’t going to make life easy for the eight-justice Supreme Court to avoid a tie vote, which threatens a patchwork system where some employees’ access to contraceptive coverage could depend on where they live.

In oral arguments last month in the case, Zubik v. Burwell, the justices struggled with the feasibility of some of the alternatives to their current accommodation and in a surprise move the following week ordered more briefing considering other ways to exempt the religious groups from the mandate.

Currently, religious non-profits that object to covering birth control must either file a form with their insurance companies or notify the government in writing of their objection. The challengers, which include the Little Sisters of the Poor religious order, say that even formally stating their objection is a burden on their faith because from there the government and the insurer work to provide the coverage to the employees outside the employer plan.

The court’s surprise order asked for briefing on alternative workarounds for 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.” The order also outlined an example scenario in which an employer would inform its insurer from the get-go not to include contraceptives in the plan’s coverage and then insurer would notify the employee that contraceptive coverage was being offered to her cost-free, outside of the employer plan.

The challengers, in a brief filed Tuesday, pushed back at that suggestion, arguing that the accommodation would still need to amount to “a separate plan, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to eligible individuals through a separate communication.”

They said that the plans would need to be “truly separate contraceptive-only policies,” that would also be available for employees with church plans or self-insured plans to enroll in. The crux of their argument was that the employees would need to opt in to coverage, rather then requiring employers to opt out.

“Again, these separate plans could take the form of individual insurance policies or group health plans sponsored by the government,” the brief said. “But either way, the insurance companies could separately contact petitioners’ employees and give them the option of enrolling in the separate, contraceptive-only policy.”

The example scenario the challengers’ brief offered was that insurance cards would bear a phone number — akin to credit card activation codes — that female employees could call to enroll in a second, contraceptive-only plan.

But the challengers didn’t stop there.

They also said that they would prefer that the insurer not even inform the employees that they would need to get coverage through a separate program, lest it give “the appearance that the coverage is available only as a result of the employment relationship with the employer.”

Instead, the challengers argued, it would be better if the government or healthcare providers informed women they would need to enroll in a separate plan.

Furthermore, they stressed that the religious organizations did not “endorse such an approach as a policy matter,” nor would they endorse the previous alternatives they offered, which mostly came down to the government providing the contraceptive coverage on its own, either directly or by funding outside programs.

“And petitioners certainly have the right, protected by the First Amendment, to make that disagreement known,” the brief said.

The government in its brief, meanwhile, spent ample time defending the system already in place while rejecting the argument offered by the challengers (and entertained by the conservative justices at oral arguments) that religious groups’ plans were being “hijacked.”

The Supreme Court’s suggested workaround was “very similar to the existing accommodation” government said, and “could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation.”

One issue both sides raised was how the Supreme Court-suggested workaround would work for organizations that self-insure. The government said it would legally still need some formal objection from employers in order to enlist a third party administrator to offer the coverage. The challengers, meanwhile, used the problem to argue that only separate contraceptive plans that employees would enroll in either through their current insurance companies or on the exchanges would work.

If the government was going to go along with what the court had suggested, it pressed the point that, after that, the matter should be settled and the Supreme Court’s decision in Zubik v. Burwell should the final word when it comes to religious objections to Obamacare’s contraceptive mandate. It argued that even if the challengers accepted a workaround greenlighted by the court, some other organizations might not, and the court’s decision should leave no wiggle room for future litigation, “during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.”

“In these cases alone, petitioners seek relief on behalf of organizations with more than 30,000 employees and students,” the brief said. “In order to avoid the continued denial of statutory rights to these tens of thousands of third parties, we respectfully request that the Court definitively resolve petitioners’ challenges to the accommodation.”