How To Make Sense Of The Baffling Order The Supreme Court Just Handed Down On Birth Control


The biggest birth control case to reach the Supreme Court in 40 years just got a whole lot more confusing.

On Tuesday, the Supreme Court handed down an unusual order seeking more briefing in Zubik v. Burwell, a challenge to Obama administration regulations intended to expand access to birth control. Under the regulations at issue in Zubik, most employees must include contraceptive coverage in their employer-provided health plan. Employers who object to birth control as religious groups, however, may either fill out a form or write a brief letter seeking an exemption from this requirement. Once they do so, they are permitted to offer insurance that does not cover birth control, and, in most cases, their insurance provider will offer a separate, contraception-only plan to the employer’s workers.

Last week, at oral arguments in this case, the Court appeared likely to split 4–4 in this case — potentially creating a chaotic situation where a woman’s right to birth control coverage could depend upon which state she lived in and which regional appeals court considered her employer’s obligations under the law. Tuesday’s order appears to be an effort to warn off that circumstance.

The order instructs the parties in Zubik and a bevy of related cases 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” (“petitioners” in this case, refers to the employers who object to birth control). In case that instruction is not clear, the order also offers an example of a possible regime that may survive review in the Supreme Court:

[T]he parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit anyseparate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.

In other words, rather than filling out a form provided by the government — or otherwise raising its objection in the way dictated by federal regulators — this alternative solution would require a religious objector to “inform their insurance company that they do not want their health plan to include contraceptive coverage” at the time when they initially contract with the insurance company. If that seems like a mighty fine hair to split, that’s because it is. It’s not entirely clear why an employer who is upset by the government’s form would suddenly feel better because they are allowed to notify their insurance company of their objection in a different way.


If the Court is, in fact, willing to accept this solution, however, that could be a win for the government — and for women seeking access to birth control. At oral arguments, conservative justices pressed solutions that would raise considerable obstacles for women seeking birth control, such as requiring women to obtain birth control-only plans in an health care marketplace where insurance may not be willing to offer such plans. The solution posed in the Tuesday order, by contrast, will ensure that most women still receive birth control coverage seamlessly from the same company that manages their primary health plan.

The catch, however, is that it may not be possible for the federal government to put such a solution in place, at least without a change to federal law. Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act (ERISA). The Obama administration found authorization for its current rules in the existing ERISA statute, but it is not entirely clear that current law will enable them to move forward with the idiosyncratic solution described in the Supreme Court’s Tuesday order. Indeed, it is likely that one reason that the Court asked for additional briefing in this case was to determine whether the government has the authority to implement the justices’ preferred solution under ERISA.

Should the government have the authority to do so, however, then Tuesday’s order suggests that the Court is willing to give an 80% victory to the Obama administration. Though their current rules might be struck down, the Court appears ready to greenlight a slight tweak to those rules that would still ensure that most women employed by religious objectors obtain birth control coverage.