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Today the U.S. Supreme Court asked the parties to the contraceptive mandate cases (known collectively as Zubik v. Burwell ) to go back to the drawing table and figure out how a way to accommodate both the religious beliefs of religious employers who felt that providing health insurance that included contraception as mandated by the Affordable Care Act and the rights of women to federally guaranteed health coverage. (Slip opinion.)

Although some immediately responded that this was a victory for the Little Sisters of the Poor and other charities, what this decision does is open the door to negotiating a peaceful resolution in a way that keeps existing rights and freedoms intact. In this case, the nonprofit religious employers were invoking the Religious Freedom Restoration Act to claim that even the opt-out provision from the contraceptive mandate itself, which requires self-certification, burdened their religion “substantially."

By advocating an "all or nothing approach," the organizations might have pushed RFRA to the breaking point leading to its eventual demise in Congress had the Supreme Court ruled in their favor.

After hearing oral argument in March, the Court requested supplemental briefs to address the question of whether contraceptive coverage could be provided to the employees directly by the insurance companies without the notice from the religious employers. Perhaps in recognition of the long-term perils faced by both parties, today the Court took on the role of a mediator going as far as to outline a potential, but not mandatory, pathway toward resolution.

After reviewing the new briefs,the Court found that both sides admitted that it would be possible to find a way to give employees knowledge of coverage without the involvement of employers.  The religious organizations had already said that their free exercise of religion would not be infringed upon if they did nothing more than have a contract for a plan from the insurance company. Here, the same insurance company could give the coverage to the employees "cost-free."  In other words, the employers aren't specifically paying for the contraception coverage and the employees still get it seamlessly "for free."  Don't think about it too hard – yes, somebody will pay for that coverage, and it won't be the taxpayers.

The Court's proposal is perhaps a Catholic equivalent to a Shabbos goy, but it might just provide enough distance between the employer and contraception coverage to keep everybody happy and RFRA safe for another day.

The Court isn't mandating that the parties accept this plan, but the Court proposed it as a possibility and asks the Courts of Appeals "allow the parties sufficient time to resolve any outstanding issues between them."

Maybe the "alternative dispute resolution" approach will ultimately be the best approach even this late in the game.

 

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