After the U.S. Supreme Court heard oral arguments in the case Zubik v. Burwell, which challenges the constitutionality of the contraceptive mandate in the Affordable Care Act, the court ordered both sides to do something unprecedented.
They were asked to explore a compromise in which the mandate could remain, but those with religious objections could opt out without penalty.
Based on the Solicitor General's brief in response to that order, it appears there won't be a compromise in the case anytime soon. The Obama administration's position is clear and contains the following points:
- the existing accommodations provided by the federal government already meets most of the court's requirements—"First, the accommodation extinguishes an objecting employer's obligation to provide contraceptive coverage and instead assigns the relevant insurer 'sole responsibility for providing such coverage.' ... Second, the accommodation ensures that the employer does not pay for the separate contraceptive coverage."
- the court shouldn't require any changes to the process the federal government provides for religious accommodation—"Requiring a party seeking an exemption to certify its eligibility in writing is a common and appropriate way to effectuate a religious accommodation. The self-certification process at issue here was adopted with broad support from commenters, including many religious organizations, because it provides clarity and certainty to all parties whose rights and duties are affected by the accommodation."
- at taxpayer expense, the existing accommodation process could be amended to fully meet the court's requirements, but that shouldn't be necessary—"[T]he 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."
- the current court should "definitively resolve" the matter—"If this Court concludes that some aspect of the present opt-out procedure for insured plans must be modified to adequately meet petitioners' religious objections to the contraceptive-coverage requirement, it should make clear that the government may require petitioners' insurers to provide separate contraceptive coverage to petitioners' employees in accordance with the other provisions of the existing regulations. Petitioners' challenge to that basic feature of the accommodation is squarely presented here, and it affects the legal rights of numerous nonprofit and for-profit employers that have challenged the accommodation—as well as tens of thousands of women who presently are not receiving the health coverage to which they are entitled by law. We respectfully submit that the Court should definitively resolve the issue rather than allowing the current uncertainty to continue.
Some court observers have speculated that the court is deadlocked on Zubik and may have sought to the accommodation to avoid another 4-4 split decision. If that were to happen, the hodgepodge of various appellate court rulings would continue to stand.
The Supreme Court may, however, decide to hold the case over until the late Associate Justice Antonin Scalia's vacancy is filled. Once the new justice is seated, the case could be re-argued, but both sides will have had time to refine their arguments.
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