The Battle of The Birth Control should be entering its endgame.
About a month ago, the Supreme Court heard oral arguments in Zubik v. Burwell, a sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby. Before Zubik was argued, it appeared likely that the justices would resolve, once and for all, just how much ability employers with religious objections to contraception have to limit their employees’ access to birth control.
Now, however, it appears increasingly likely that this battle could continue for months or even years — and the lawyers representing the religious objectors in Zubik are only fanning the flames of an eternal conflict. In a brief filed on Wednesday, these attorneys offer a collective shrug at the idea of an endless stream of litigants flooding the courts with lawsuits prolonging a never-the-be-resolved battle over birth control.
To catch folks up who haven’t followed the many twists and turns of this increasingly arcane dispute, Hobby Lobby held that federal regulations requiring employers to include many forms of contraception in their employees’ health plans could not be enforced against employers with religious objection to birth control. Yet, in reaching this conclusion, the Court also strongly implied that an alternative method of providing birth control to employees of religious objectors would be acceptable. Under this alternative, religious objectors could exempt themselves from the requirement to cover birth control if they filled out a two-page form. In most cases, the employer’s insurance company or the government would then make separate arrangements to cover the employee’s birth control.
Just four days after Hobby Lobby, however, the Court handed down an unexpected order that cast serious doubt on its suggestion that the fill-out-the-form alternative would survive additional scrutiny from the conservative Roberts Court. That order granted temporary relief to Wheaton College, an institution that claimed a religious objection even to filling out the form. The Court’s decision to quickly back away from the mitigating language in Hobby Lobby so alarmed three members of the Court that they joined an opinion by Justice Sonia Sotomayor that came just one step shy of accusing her colleagues of lying. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Then came the Zubik argument in March where the Court, down one conservative member and unable to form a majority without at least one justice crossing party lines, appeared ready to split 4–4 on the legality of the fill-out-the-form solution. The next week, the Court handed down an especially unusual order proposing a potential compromise in the Zubik case — a slight tweak to the current rules that might enable the employees of religious objectors to obtain birth control coverage without requiring the objectors to fill out the dread form (or take similar action).
But, alas, as both sides explained in briefs reacting to this proposed compromise, the Court’s proposal could only solve but so much. Unless the justices significantly rework existing insurance law, the compromise is unlikely to deliver birth control as widely as the fill-out-the-form solution.
In its own brief reacting to the proffered compromise, the Justice Department all but begged the Court to put an end to this seemingly endless fight over contraception. One problem with the justices’ proposed compromise, Solicitor General Donald Verrilli warned, is that, even if the Zubik plaintiffs “were to disclaim any challenge to the alternative the Court’s order posits, many other nonprofit and for-profit employers have asserted parallel [religious liberty] claims.” Unless the Court makes it absolutely clear when and how the federal government can protect women’s access the birth control, a new method of protecting that access will “inevitably lead to uncertainty and continued litigation in the lower courts” as additional religious objectors emerge from the woodwork to challenge the new rules.
Which brings us back to the brief filed by the religious objectors on Wednesday. That brief is signed by an astounding array of 30 different attorneys — including former Solicitor General Paul Clement, probably the leading conservative litigator alive today and one of the nation’s most prominent Supreme Court advocates. And yet it includes a claim of such dubious credibility that it is unclear how anyone familiar with the many twists and turns of this litigation could possibly believe it.
In response to the Justice Department’s concern that a new set of birth control regulations would trigger yet another round of litigation, Clement and his team write that, while their clients “cannot guarantee that no religious adherent would challenge such an arrangement, this Court’s order (and subsequent opinion) would surely deter such a challenge.” They claim, in essence, that if the Court writes an opinion striking down the fill-out-the-form rules but suggesting its new proposal as an acceptable alternative, then future litigants would read that as a clear signal that the alternative is legal and would decline to file a lawsuit challenging it.
It’s an entirely plausible claim! Except, of course, to anyone who has read the Hobby Lobby opinion and followed the fill-out-the-form litigation. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. But not in Zubik v. Burwell.
The Justice Department knows exactly what happens next if the Roberts Courts appears to endorse one method of promoting contraceptive access because they’ve tried to kick this football before.