The Zubik Supplemental Briefs: The Objectors Push for Second-Class Coverage, With a Smile

By Gregory M. Lipper

The first set of supplemental briefs in Zubik v. Burwell is in. The government seems willing to accept a modified version of the Court’s proposed compromise—if it means that the Court will halt the neverending legal challenges to the contraceptive-coverage regulations. The religious objectors, however, merely purport to accept the Court’s proposal; in practice, they are standing by their insistance that affected women should be forced to seek and obtain second-class, contraception-only policies that will sever their reproductive care from the rest of their healthcare. And they reserve the right to use the political process to oppose the creation of even those second-class plans.

Recall that the Court proposed a modified version of the government’s accommodation. The Court proposed that rather than provide separate written notice in order to become exempt from the coverage regulations, objectors coud simply “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”; at that point, and as contemplated by the existing accommodation, the insurance companies “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.” (If you want more detail, here’s my earlier coverage of the Court’s order.)

In response, the government states that the Court’s proposal is not ideal, and would be more costly, but might work—at least in the context of objectors with third-party insurance companies. With respect to objectors who self-insure (and rely on third-party administrators), however, the current accommodation remains necessary given the requirements of ERISA. The government adds that self-insured objectors are always free to switch to traditional insured plans, and alternatively invites the Court to enjoin application of certain ERISA requirements to the extent that those requirements would prevent the Court’s proposal from working for self-insured objectors.

Recognizing that the objectors continue to refuse to take yes for an answer, the government also stresses the need for a definitive resolution of these cases: “A decision requiring a modification to the accommodation while leaving open the possibility that even the arrangement as so modified might itself be deemed insufficient would lead to years of additional litigation, during which tens of thousands of women would likely continue to be denied the coverage to which they are legally entitled.” Enough of this limbo, says the government.

While the government signals that it can live with the Court’s proposal, the objectors double-down on requiring inferior, contraception-only plans that—even if they existed—would impose serious burdens on affected women.

First, even with respect to those covered by third-party insurance companies, the objectors are willing to agree only to contraceptive coverage “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.” It’s unclear what they contemplate in practice. But as The Economist points out, “the insurer will have to segregate the contraceptive coverage all the way down the line. That means separate ID cards and separate accounts, along with, probably, a separate pool of participating doctors. Not just separate. Truly separate.”

But in any event, that only goes for insured plans. For self-insured objectors, the brief says, “among the many less restrictive alternatives available to the government is to require or incentivize commerical insurance companies to make separate contraceptive coverage plans (of the kind contemplated by the Court’s order for petitioners with insured plans) available to the employees of petitioners that self-insure or use self-insured church plans.” These mythical contraception-only plans do not exist; even if they did, they would create significant obstacles for women—severing their reproductive care from the rest of their healthcare and resuming the very second-class status that the Affordable Care Act was designed to prevent.

Finally, the objectors reserve the right to use the political process to prevent the government from creating even these inferior alternatives:

To be clear, that is not to say that petitioners endorse such an approach as a policy matter. Many of them emphatically do not, as they sincerely believe that the use of some or all forms of contraception is immoral, and they are hardly indifferent to efforts to encourage or facilitate that use.

What does that mean in practice?

For that reason, petitioners may disagree as a policy matter with government programs, such as Title X, that make contraceptives or abortifacients more widely available to their own employees or anyone else. And petitioners certainly have the right, protected by the First Amendment, to make that disagreement known.

In short, while the objectors claim to accept the Court’s proposal, their true message is clear: We insist that you create a new, second-class program for women who need access to contraception, and we may well fight to prevent you from doing even that. Although some commentators viewed it differently, this wolf comes thinly veiled indeed.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.