One of the most controversial parts of the Patient Protection and Affordable Care Act (ACA) has been the requirement that contraceptive services be covered by health plans. In 2014, the Supreme Court held that an employer that opposes contraception for religious reasons may not have to offer insurance that covers contraception. The employer must certify that it is eligible for such an exemption, and the employer must inform employees that separate payments for contraceptive services are available.
Recently, another challenge to the contraception mandate in the Affordable Care Act, Zubik v. Burwell (commonly known as the “Little Sisters of the Poor” case) has been working its way through the courts. This challenge is based on the argument that completing the paperwork necessary for a religious exemption to the contraception mandate makes an employer complicit in providing contraception coverage.
The case was argued before the Supreme Court on March 23, 2016. Less than a week after the oral argument, the Supreme Court took the unusual step of ordering the parties to the case to submit briefs about a possible compromise. The Court’s order asked for briefs that discussed “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.” As an example of how this might be accomplished, the Court’s order suggested that employers could “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.” Employers who did this would not be required to provide or pay for contraceptive coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. The employer’s health insurance carrier would separately notify employees “that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by [the employer] and is not provided through [the employer’s] health plan.”
The supplemental briefs that have been filed show that both sides are open to a compromise. The Obama administration’s brief repeated its argument that no change to the ACA is necessary, but that if a change is required, the Supreme Court should make clear that employees will still have access to contraceptive coverage in some form and that the new system is lawful. The Court should also make clear that this new system is lawful, preventing another court challenge to the ACA from going forward. The groups opposing the contraception mandate welcomed the Court’s suggested compromise. Their brief said that the Court’s suggested compromise is one of “many ways” the ACA requirements could operate that would be better than the current way.
The parties in the case have until April 20 to reply to the briefs that have been submitted.