Opposing sides in Supreme Court ACA contraception case suggest compromise

The U.S. Supreme Court may be one step closer to reaching a compromise decision in a case brought by religious not-for-profits that object to helping their employees get contraception coverage as required by the Affordable Care Act.

The government and the petitioners agreed in briefs Tuesday that a new method could allow not-for-profits' employees to get contraception coverage without involving their employers. But the two sides still don't agree on all the particulars.

The briefs were submitted in response to an unusual request from the justices last month to come up with ideas on the matter.

The not-for-profits object to an Obama administration workaround that requires them to notify their insurers or the government if they don't want to comply with the contraceptive coverage mandate so other arrangements can be made for their employees. The not-for-profits say requiring them to provide such notification makes them complicit in helping employees get birth control, which violates their religious beliefs.

The court's request for suggestions followed oral arguments last month in which the justices seemed divided on the case. If the justices were to split 4-4, the decisions of the lower courts would stand. Eight of nine federal appeals courts have sided with the government.

Some experts have suggested that a compromise might be the only way to get a fifth vote at the Supreme Court.

Debating alternatives

The not-for-profits embraced the idea of an alternative to the workaround.

“Yes, there are ways to do this without us,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, one of the petitioners in the matter. “If the government does this without us that would solve the religious liberty problem.”

The groups suggested that the government could require insurance companies contracting with the religious not-for-profits to offer separate plans to the groups' employees that do include contraception coverage. Those plans could be individual or group and be sponsored by the government, they say. The insurers could contact the groups' employees directly to offer the coverage, keeping the not-for-profits, as organizations, out of it.

The groups insist they were never trying to keep birth control out of their employees' hands. Rather, they just didn't want to be involved in helping their employees get such coverage.

The groups' message to the government, Rienzi said, is, “You can do whatever you want, but you need to leave me out of it.”

In its brief, the government also acknowledged — though less enthusiastically — that alternatives to the current workaround are possible. The government argued that the court should still rule in its favor, not requiring any changes to the current workaround, which it called a “minimally intrusive process that provides clarity.”

Still, the government said, the process could change. Instead of requiring notification, the government could tell insurers to automatically offer contraception coverage whenever an employer chooses a plan that does not include such coverage for religious reasons.

The court suggested the same strategy in its order last month for alternatives.

Douglas Laycock, a University of Virginia law professor, said in an e-mail the briefs show “grudging tendentious acceptance from both sides that the court's proposal could work for insured plans.” Mr. Laycock filed a brief in the case siding with the government on behalf of the Baptist Joint Committee for Religious Liberty.

The two sides, however, disagree on whether alternative workarounds could be applied to self-insured organizations.

The not-for-profits say individuals employed by such organizations that object to the mandate could get contraception coverage by enrolling in separate plans either directly through other insurers or the public insurance exchanges. The government could inform the not-for-profits' employees of the availability of such coverage, contacting them using information from IRS filings, for example.

Or the government could require providers to tell the not-for-profit employees about their coverage options, the groups say.

The government, meanwhile, says such an alternative would not work for self-insured plans.

“This means the court will not be able to announce a solution that both sides will accept,” Mr. Laycock said. “It will actually have to decide the case.”

Robin Fretwell Wilson, a law professor and director of the family law and policy program at the University of Illinois at Urbana, said the court seems to genuinely be searching for a compromise.

“I think they're really trying to thread the needle down the middle and find a way for the religious objectors to be left off the hook without deeply upsetting the structure the government has come up with to accommodate those very same people,” Ms. Fretwell Wilson said.

The sides are supposed to reply next week to the briefs filed Tuesday. A decision in the case may come as late as June.

Lisa Schencker writes for Modern Healthcare, a sister publication of Business Insurance.