Supreme Court asks for more info on ObamaCare birth control case

The Supreme Court on Tuesday signaled it may be looking for a way out of a controversial ObamaCare birth control case.

The court asked for additional information from both sides on “whether and how” employees of religious nonprofits could get contraceptive coverage through other means that would be less objectionable to their employers. 

That request indicates that the court is looking for a new accommodation that would still allow employees to get contraceptive coverage, replacing the system that religious nonprofits are currently challenging. 

The order from the court provides an example of a system where employers informed their insurance company of their objection to contraceptive coverage at the time the employer singed up for insurance in the first place, eliminating the need for a separate form. 

The court also asked for “other proposals along similar lines."

The goal, it said, is to address how employees could still get contraceptive coverage “but in a way that does not require any involvement” from the religious employers, meaning they would not have to sign the form that they currently object to. 

The Supreme Court appeared to be headed towards a possible 4-4 split on the case at arguments last week, and the order could be seen as a way to avoid that outcome. 

The final deadline for submissions from the administration and the challengers is April 20.

At issue is the requirement under the Affordable Care Act that health insurance plans cover contraception at no cost to the patient. The Obama administration has devised an accommodation to that requirement for religious nonprofits such as colleges and hospitals.
Under the accommodation, nonprofits that object to covering contraceptives can sign a two-page form notifying their insurer. The insurer will then separately pay for the contraceptives for employees, which the administration says strikes a good balance: The employer does not have to provide the coverage, but the employees can still get contraceptives.

But a group of religious nonprofits disagree.

They say they are still complicit in their employees getting contraceptive coverage and call that a violation of a 1993 law that says the government cannot “substantially burden” someone’s exercise of religion unless it is the “least restrictive means” of furthering a “compelling government interest.” 

Both sides said Tuesday that the new order was an encouraging sign.

The challengers said the court is recognizing that the current system needs to be changed. 

"This is an excellent development. Clearly the Supreme Court understood the Sisters' concern that the government's current scheme forces them to violate their religion," Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor, said in a statement. "We look forward to offering alternatives that protect the Little Sisters' religious liberty while allowing the government to meet its stated goals."

But Gretchen Borchelt, a vice president at the National Women's Law Center, which is on the Obama administration's side, said it is a "good sign" that the court is looking for some way for women to arrange contraception through an employer's regular insurance company.

The challengers, Borchelt noted, had suggested forcing women onto the ObamaCare exchanges instead.