Some unusual developments at the US Supreme Court suggest that the answer may be: Yes!


In the course of implementing the Affordable Care Act, the Obama administration created a “contraception mandate” under which businesses, organizations, and institutions must provide medical insurance plans that pay for female contraceptives and female sterilization with no deductibles and no copays. The purpose of the mandate was to make contraceptives and sterilization free for the women who want them and force other members of the public to bear the cost in the form of higher insurance premiums.

From the start the administration agreed to provide an exemption for churches, and in 2014 the Supreme Court forced it to provide an additional exemption for closely held private businesses when the owners have a religious objection. For reasons having nothing to do with religion, the government also exempted businesses with existing plans that lacked the required coverage. As a result, millions of American women continue to be covered by polices that do not provide free contraceptives and free sterilization. Nevertheless, the administration has steadfastly refused to grant an exemption to religious organizations that are not churches.

Faced with a choice between violating their religious precepts and paying ruinous fines, a group of religious charities and schools associated with the Roman Catholic Diocese of Pittsburgh challenged the contraceptive mandate as a violation of the Religious Freedom Restoration Act. Their case, Zubik v. Burwell, was eventually consolidated with similar challenges brought by other religious groups, including the Little Sisters of the Poor, Priests for Life, Geneva College, and East Texas Baptist University.

The Supreme Court Issues a Surprising Order

The US Supreme Court heard oral arguments in the case last month. Most observers expected a split decision, with the conservative wing siding with the religious organizations and the liberal wing siding with the government. To everyone’s surprise, however, the Court issued an order stating:

The parties are directed to file supplemental briefs that address 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….

The Court went on to suggests a hypothetical example in which a religious organization’s only responsibility would be to “inform their insurance company that they do not want their health plan to include contraceptive coverage,” and in which it would be the responsibility of the insurance company to provide cost-free contraceptive coverage to employees through a separate plan that is neither paid for nor authorized by the organization.

This highly unusual order suggested that at least one liberal justice was unhappy with the Government’s position and hoping to find a compromise so as to avoid having to vote against it.

The Parties Respond

The religious organizations responded forthrightly, saying:

In its supplemental briefing order, this Court has asked the parties to address whether “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.” The answer to that question is clear and simple: Yes. There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order. And each one of those ways is a less restrictive alternative that dooms the government’s ongoing effort to use the threat of massive penalties to compel petitioners to forsake their sincerely held religious beliefs. (Emphasis added.)

The government’s response, on the other hand, was rather oblique. It devoted the first six pages to complaining about all its prior efforts to arrive at an accommodation with the religious organizations, including a proposed accommodation that, it claimed, was very similar to the one proposed by the Court. It devoted another eight pages to rehashing the arguments in favor of that previously proposed accommodation. Finally, on page 14, it grudgingly answered the question:

Although the Court should not require a change, the accommodation for employers with insured plans could, at some cost, be modified to operate in the manner posited in the Court’s order.

This is a huge admission. Under the Religious Freedom Restoration Act, individuals and organizations cannot be forced to violate their religious beliefs unless the government can show that doing so is “the least restrictive means of furthering a compelling governmental interest.” In this case the government evidently believes it has a compelling interest in manipulating the insurance market in a way that will shift the cost of female contraception from the women who want it to other members of the public. The Court proposed an approach to furthering that interest that both parties agree is less restrictive than the one currently insisted upon by the government. As the petitioners point out in their brief, that ought to be enough to “doom” the government’s case, and the government evidently knows it.

Constitutional law scholar Michael McConnell neatly sums it up:

The government’s brief seems to acknowledge the handwriting on the wall. Because it can use a less restrictive means to accomplish its interests, it must.