Supreme Court Requests Additional Briefing in Zubik

Think Progress (March 29, 2016): How to Make Sense of the Baffling Order the Supreme Court Just Handed Down on Birth Control, by Ian Millhiser:

On Tuesday, the Supreme Court handed down an unusual order seeking more briefing in Zubik v. Burwell, a challenge to Obama administration regulations intended to expand access to birth control. Under the regulations at issue in Zubik, most employees must include contraceptive coverage in their employer-provided health plan. Employers who object to birth control as religious groups, however, may either fill out a form or write a brief letter seeking an exemption from this requirement. Once they do so, they are permitted to offer insurance that does not cover birth control, and, in most cases, their insurance provider will offer a separate, contraception-only plan to the employer’s workers.

The Supreme Court's order instructs the parties 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 appears interested in whether the employer could notify the insurance company that it does not wish to provide birth control when they contract for insurance and the insurance company could then notify employees that it will separately provide contraceptive coverage cost-free separate from the employers' plan.  This solution would allow employees to receive coverage from the employer's insurer and avoid the need to purchase a separate policy.

The catch, however, is that it may not be possible for the federal government to put such a solution in place, at least without a change to federal law. Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act (ERISA). The Obama administration found authorization for its current rules in the existing ERISA statute, but it is not entirely clear that current law will enable them to move forward with the idiosyncratic solution described in the Supreme Court’s Tuesday order. Indeed, it is likely that one reason that the Court asked for additional briefing in this case was to determine whether the government has the authority to implement the justices’ preferred solution under ERISA.