The Supreme Court today issued a much-anticipated ruling in Zubik v. Burwell, the latest lawsuit against the Affordable Care Act's contraceptive provision. The ACA requires that insurance plans offer contraceptive coverage at zero cost, and includes a clause that employers who object to providing such coverage can request exemption from it, in which case the insurance company provides the contraception coverage, and the government pays them. In the current case, the nonprofit petitioners said that even being required to request exemption from the contraception mandate substantially burdened their religious freedom, since it would make them "complicit" in their employees' acquisition of contraception. As I do every time someone mentions this case, I'll point out now that these employees also receive wages from the company, which could also be used to purchase contraception. So that theory of the case would imply that wages are immoral. Given the political climate in the U.S., I should probably add that I consider this argument a reductio.
Now we know how the Hollow Claim ends. After oral argument the Court requested additional briefs to see, essentially, whether the parties could work things out themselves, providing both contraception and religious accommodati0n. Both parties submitted supplemental briefs indicating they could, and so today the SCOTUS ordered them to get busy on that project:
"Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company. Supplemental Brief for Petitioners 4. The Government has confirmed that the challenged procedures “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.” Supplemental Brief for Respondents 14–15.
In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits. Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them."
In the meantime, it is worth pointing out that this is an exercise in the Courts ordering biopolitics to happen, and rejecting efforts to get out of that process through judicial fiat. I mention that only because (shameless self-promotion), I think the logic, if not the language, is on the general same page as how the Courts handled school desegregation in its heyday: the Court sets the outer parameters, but basically they want a policy-making process to happen, if with juridical supervision.