The Supreme Court has ordered more legal briefs in the birth control case it heard last week, indicating that the justices are struggling to avoid another 4-4 tie. The case tests the religious liberty claims against the Obamacare mandate for birth control in all health insurance plans.
Some faith-based nonprofits — like hospitals, universities and service organizations — object to signing an opt-out form on the grounds that that action triggers the insurer's providing birth control coverage separately. At the oral argument last week, several of the conservative justices said the requirement "hijacked" the religious employers' insurance plans, and a 4-4 tie seemed likely.
In an apparent attempt to prevent a deadlock, the court on Tuesday afternoon asked the government and the religious objectors to address a specific question: whether birth control coverage for employees could be obtained without involving faith-based employers at all; and the court offered a specific suggestion for doing so.
In an unusually detailed order, the court asked whether it would be possible to have objecting nonprofits notify their insurers that they do not want to have their plan cover contraception that they are opposed to, and upon receiving this notification, the insurer would separately notify employees that the insurance company will provide the coverage on its own.
The additional briefs are to be filed by April 20. The government undoubtedly will have to consult with insurance companies to see what health plans can do without adding significant administrative costs. And one of the issues bound to concern the health insurers is where the requirement for separate coverage will end. For instance, what about religious nonprofits that object to blood transfusions, or vaccines, or numerous other medical procedures?
Tuesday's order for more briefs likely stems from the concerns of Justice Anthony Kennedy, who was among those who called the Obamacare opt-out a "hijacking " of the religious objectors' plans at the oral argument last week. He seemed at the time to be grasping for an alternative; but if he is ultimately persuaded there is not a good one, he would likely join the court's four liberals and make a five-vote majority for upholding the current opt-out provision.
If, on the other hand, he is persuaded there is a good alternative, the liberal justices could either join him or there would be a 4-4 tie. The result of a tie would be that in most of the country, where the opt-out provision has been upheld by the lower courts, the opt-out provision would be the law; but in the states governed by the 8th Circuit Court of Appeals, which struck down the provision, the opt-out measure would be voided. The states in the 8th Circuit are Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.