[Josh Blackman] The Supreme Court’s punt on the Little Sisters of the Poor cannot be returned

In Burwell v. Hobby Lobby Stores (2014), the Supreme Court held that certain for-profit corporations cannot be compelled to provide their employees with contraceptive coverage if doing so imposes a substantial burden on their free exercise. That case, however, did not resolve all religious objections. After a series of rulemakings, the Obama administration proposed an “accommodation” for both religious for-profit and nonprofit entities. With the accommodation, insurance companies would now pay for contraceptive coverage under the auspices of the nonprofit’s plan. The nonprofits objected to this workaround, which, they said, “hijacked” their plans.

In March 2016, the Supreme Court heard arguments in the consolidated case of Zubik v. Burwell to determine whether the accommodation violated the Religious Freedom Restoration Act. The resolution of this case would be, well, unprecedented.

Unexpected homework

Three days after arguments, the justices assigned some unexpected homework:

“The parties are directed to file supplemental briefs that address whether and 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.”

In English, the court asked the parties to discuss whether there was some other way for the nonprofit’s insurer to pay for their employees’ contraceptives without the nonprofit formally objecting. Critically, the court suggested, “such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” But the court was not committed to this approach. “The parties may address other proposals along similar lines,” the order stated, “avoiding repetition of discussion in prior briefing.”

Requests for additional briefing by the Supreme Court are extremely rare. Over the past three decades, the court has ordered supplemental briefing in only 28 cases: Eight cases were rescheduled for argument the following term; in nine cases, additional briefing was requested before the case was argued; and in 11 cases, additional briefing was requested after the case was argued. The 354-word order in Zubik, however, was unprecedented. Rather than responding to changed facts, or questions that arose from the party’s initial briefs or arguments, the Zubik order was a product of the justices’ own agitation. The parties filed supplemental briefs but were still quite far apart.

Per curiam

On May 16, 2016, this unpredictable case took another unpredictable turn. The chief justice, who had announced the court’s decisions in NFIB v. Sebelius and King v. Burwell, read from a short, per curiam decision. “Following oral argument,” Chief Justice John Roberts began, “the Court requested supplemental briefing from the parties addressing ‘whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.’” Both parties “now confirm that such an option is feasible.” The nonprofits, Roberts relayed, “have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.” Additionally, the United States “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’”

By all accounts, the chief justice suggested both the plaintiffs and the government agreed that a compromise could be worked out. The chief justice noted, “We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.” If only it were so easy.

ERISA

The court’s punt saddled the lower courts with an intractable task. Contrary to the breezy order, a compromise is not at hand. The final chapter of “Unraveled” explains how the intricacies of ERISA, and not the tough-line drawing issues of RFRA, will resolve the fate of the accommodation. In Zubik, the various religious nonprofits utilized three different types of insurance plans that are treated differently for purposes of ERISA: (1) insured plans, (2) self-insured plans, and (3) church plans. The differences between these plans are extremely impo