The Obama Administration Is Out Of Patience For The Supreme Court’s Birth Control Tomfoolery

Solicitor General Donald B. Verrilli Jr. CREDIT: AP PHOTO/HARAZ N. GHANBARI
Solicitor General Donald B. Verrilli Jr. CREDIT: AP PHOTO/HARAZ N. GHANBARI

Zubik v. Burwell should have been a very easy case.

Before the Supreme Court set off a doctrinal earthquake in its 2014 Hobby Lobby decision, the justices had struck a careful balance between the rights of religious objectors and the need to maintain the rule of law in a pluralistic society. Religious people enjoyed broad rights to act according to their own religious conscience, but they could not wield religious objections to limit the rights of others. Thus, when religious objectors claimed that their objections to contraception should trump federal rules guaranteeing that many women would have access to birth control, previous law protected the rights of those women.

Yet, even as Hobby Lobby cast a cloud of doubt over this longstanding balance, it seemed to contain a significant silver lining for women seeking contraception. Though Hobby Lobby permitted employers to ignore regulations requiring them to include birth control coverage in their employees’ health plans, it also relied heavily on the fact that there was another way to provide women with birth control while imposing less of a burden on religious objectors. Rather than requiring employers to include contraceptive care in their own health plans, employers with religious objections could fill out a two-page form exempting themselves from this requirement. In most cases, the employer’s insurance company would then provide its employees with a separate, contraception-only insurance plan.

Which brings us back to why Zubik should have been such an easy case. The regulations at issue in Zubik concern the very same just-fill-out-the-form exemption that the Court relied on in Hobby Lobby. The overwhelming majority of federal appeals courts upheld the fill-out-the-form regulations, some of them in opinions quoting Hobby Lobby’s seeming endorsement of the new rules. Justice Anthony Kennedy, a conservative and the crucial fifth vote in the Hobby Lobby case, wrote a concurring opinion that seemed to telegraph his intention to uphold the fill-out-the-form rules.

This was not supposed to be a hard case.

But, alas, the Roberts Court has ways of making easy cases difficult. Which explains why, on Tuesday, the Justice Department filed a brief that leaves little doubt that the administration is tired of being toyed with. Solicitor General Donald Verrilli’s brief is written in the polite, precise, and deferential language that any smart lawyer uses when advocating before the justices. But it’s message is clear: the Supreme Court needs to stop jerking the government — and thousands of American women — around.

The Court’s Proposal

The brief Verrilli filed Tuesday (and another brief filed by attorneys representing the religious objectors in Zubik) were both filed in response to an odd order the justices handed down late last month. At oral argument in Zubik, Kennedy appeared to reverse his previous signs of support for the fill-out-the-form opinion, suggesting that the Court was headed towards a 4–4 split along party lines. Without a ninth justice to resolve this impasse, a split decision could cause considerable legal chaos. A woman’s right to birth control coverage could potentially hinge upon where she lives.


The Court’s March order appears to be an attempt to ward off this confusion. It asked both sides of the Zubik case to consider a tweak to the fill-out-the-form rules where religious objectors “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.” Under this modified version of the rules, objectors would no longer be required to fill out a form — or to submit any separate writing announcing their objection at all. Instead, their insurance company “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” (the word “petitioner” refers to the religious objector plaintiffs).

On Tuesday, both sides responded to this suggestion that the rules could be tweaked with a resounding “kind of.” The religious objectors, in a brief signed by a veritable army of lawyers, begin their brief by seeming to embrace the Court’s proposed solution. Yet it soon becomes clear that they will only accept it with conditions and qualifiers. The contraceptive coverage must be “provided through a separate policy, with a separate enrollment process, a separate insurance card, and a separate payment source, and offered to individuals through a separate communication” to satisfy the religious objectors.

More significantly, the objector’s brief also notes that many employers self-insure — meaning that they pay out health claims directly to their employees rather than outsourcing this function to an insurance company — and self-insured employers raise unique problems for the Court’s proposed solution. Though self-insured employers typically contract with an insurance company to “process claims and perform other administrative tasks,” that company (known as a “third party administrator” or “TPA”) “can act only in accordance with the directions that they are given by the self-insurer.”

Under the fill-out-the-form regulations, this third party administrator took on the duty to provide birth control coverage to the employees of religious objectors, but the objectors’ attorneys say that this could not be done under the Court’s proposed solution. “Because the government seeks to make the TPA a ‘plan administrator’ of the petitioner’s own plan for the limited purpose of ensuring the provision of contraceptive coverage, it needs some sort of written document from the petitioner that it can deem sufficient to empower the TPA to provide or arrange for the provision of contraceptive coverage to beneficiaries of the petitioner’s plan.”

The Justice Department, for its part, largely agrees with the objectors about the problem presented by self-insured plans, although it also argues that the government itself can substitute “a written designation sent by the government” for a form or letter submitted by the religious objector. This substitution will only work, however, if the government knows which company serves as each religious objector’s third party administrator, and the Court’s proposed solution does not require objectors to disclose this information.


DOJ’s primary concern, however, stretches far beyond its concern about how to handle self-insured plans. Justice Department attorneys have now spent years litigating over the balance of power between women and religious objectors, including two trips to the Supreme Court. And the justices seem willing to move the goal posts without warning. Meanwhile, despite the fact that most federal appeals courts have upheld the rules at issue in Zubik, those rulings are not in effect because of injunctions, stays and other temporary relief handed down by various courts. As a result, tens of thousands of women “are not receiving contraceptive coverage because the accommodation regulations have been enjoined pending this Court’s resolution of the issue.”


It is time, in other words, for the justices to stop dinking around and tell the government what it needs to do to ensure that these women receive contraceptive care. After spending about a page of his brief laying out various ways that the Court could resolve this case, Verrilli pleads with the justices not to greenlight one solution today only to allow another group of employers to challenge it tomorrow. “In all cases,” the Solicitor General writes, “the Court should make clear that the government may, consistent with [federal religious liberty law], require petitioners’ insurers and TPAs to provide separate contraceptive coverage to petitioners’ employees and their beneficiaries under the other provisions of the accommodation regulations.”

Even if the Zubik plaintiffs are satisfied with whatever solution the justices work out in this case, Verrilli knows full well what will happen next. “If petitioners themselves 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.” A too-narrow decision from the justices — or one that gives them room to move the goal posts again — “would thus inevitably lead to uncertainty and continued litigation in the lower courts.”

The lesson of Hobby Lobby and Zubik is that there will always be some new plaintiff with an idiosyncratic objection to government regulation. Before Hobby Lobby, these plaintiffs would normally win — but not if their religious objection would diminish the rights of others. It’s now clear that, by giving religious objectors an opportunity to limit the rights of others, the Court has opened the door to a seemingly endless stream of new lawsuits that the government feels obligated to fight because, if they don’t, thousands of innocent bystanders could lose their rights in the process.

The Obama administration wants this to end. And they’re now practically begging the Supreme Court to make it stop.