Parties Respond To Supreme Court's Proposed Contraceptive Compromise In Zubik Case

As previously reported, last month the U.S. Supreme Court in Zubik v. Burwell issued an unusual order seeking the parties' reactions to a Court drafted compromise on provision of health insurance contraceptive coverage for employees of religious non-profits. Yesterday both the government (full text of Government's brief) and the petitioners (full text of Petitioners' brief) filed briefs with their answers.  Neither side totally bought into the Court's alternative.  At the center of their disagreement is the question of whether employees of objecting religious non-profits will end up automatically receiving contraceptive coverage from an alternative source, or whether they will have to take separate independent action in order to obtain that coverage. The compromise floated in the Supreme Court's Order is ambiguous in this regard, suggesting:

Petitioners ... would not be required to submit any separate 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.... 

In responding to the Court's proposal, the Government said in part:

Requiring an employer seeking an exemption from the contraceptive-coverage requirement to provide written notice plays an important role in implementing the accommodation, and eliminating that requirement would impose real costs on the parties whose rights and duties are affected—including objecting employers. But the accommodation 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.

On the other hand, Petitioners argued:

Under the current regulatory scheme, there is just a single plan that automatically comes with payments for contraceptive services. Petitioners’ employees, therefore, automatically receive free contraceptive coverage solely by virtue of their enrollment in petitioners’ plans. There is no reason why this must be so. Instead, to truly separate petitioners from the contraceptive coverage, there should, at a minimum, be “two separate health insurance policies (that is, the group health insurance policy and the individual contraceptive coverage policy),”... with separate enrollment processes, insurance cards, payment sources, and communication streams....

[I]f the contraceptive coverage is to be truly separate, not just an automatic and unavoidable component of the petitioner’s plan, then it must have an enrollment process that is distinct from (and not an automatic consequence of) enrolling in the employer’s plan. Otherwise, it is not independent of the employer’s plan. That process certainly need not be complex. Like activating a credit card, it could be as simple as having the insurance company send each eligible employee a contraceptive coverage card with a sticker attached providing a telephone number to call or website portal to use should she wish to activate the coverage.

Both the government and petitioners recognized that the Court's proposed alternative failed to deal with non-profits that self-insure and use third-party administrators to implement coverage. They both also recognized that petitioners' objections are more difficult to deal with in this context. The government's answer was that some designation or self-certification by the non-profit is unavoidable here, but " any employer that objects to a feature of the accommodation unique to self-insured plans can switch to an insured plan."

The non-profits, on the other hand, devoted a significant portion of their brief to the problem of self-insured employers, saying in part:

If commercial insurance companies begin making truly separate  contraceptive coverage available to the employees of petitioners with insured plans as contemplated by this Court’s order, then there should be no legal obstacle to allowing additional individuals to enroll in those plans, whether directly through the insurer or through the Exchanges..... 

The only question, then, would be how employees of employers with self-insured plans would learn of the availability of those contraceptive-only policies. Asking the objecting employer or the objecting church plan to provide employees with that information would go well beyond what this Court’s order contemplates and what RFRA can tolerate. But there are other means through which individuals could learn about the availability of such contraceptive-only policies and how to enroll. For instance, the government itself could provide that information and assist individuals in enrollment.....

The government also could require doctors and other healthcare providers who have no religious objections to contraception to provide individuals with information about how to enroll in a contraceptive only plan if their employer’s plan does not include such coverage, and to help them complete that process should they choose to do so.

Wall Street Journal reports on the briefs.