Supreme Court Sends Contraceptives Cases Back to Circuit Courts

The U.S. Supreme Court has sent several lawsuits involving contraceptive coverage back to the Circuit Courts based on additional information obtained from the various parties. These cases involve charities, nonprofit operators of business, and colleges and schools that have religious objections to some of the contraceptives that must be covered under health care reform.

Federal regulations require employers to cover certain contraceptives as part of their health plans, unless religious organizations submit a form either to their insurer or to the Federal Government stating that they object on religious grounds to providing contraceptive coverage. The petitioners in these cases alleged that submitting this notice substantially burdens the exercise of their religion, in violation of the Religious Freedom Restoration Act of 1993.

Following oral argument, the Supreme 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. Both petitioners and the Administration confirmed that such an option is feasible. Petitioners 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. The Administration confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner suggested in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.

In light of the positions asserted by the parties in their supplemental briefs, the Supreme Court has now vacated the judgments by the Circuit Courts and remanded the cases 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. The Supreme Court anticipates that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of the Supreme Court’s involvement at this point to resolve them.

The Supreme Court expressed no view on the merits of the cases. In particular, the Supreme Court did not decide whether petitioners’ religious exercise has been substantially burdened, whether the Administration has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.

The Supreme Court said that nothing in this opinion, or in the opinions or orders of the Circuit Courts is to affect the ability of the Administration to ensure that women covered by petitioners’ health plans obtain, without cost, the full range of FDA-approved contraceptives. Through this litigation, petitioners have made the Administration aware of their view that they meet the requirements for exemption from the contraceptive coverage requirement on religious grounds. The Supreme Court also said that nothing in this opin­ion, or in the opinions or orders of the Circuit Courts, pre­cludes the Administration from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage going forward. Be­cause the Administration may rely on this notice, the Administration may not impose taxes or penalties on petitioners for failure to provide the relevant notice.

Given this compromise, it is unlikely that the issue of contraceptive coverage will return to the Supreme Court.

About John Garner

John Garner has over thirty five years of experience in employee benefits. He specializes in compliance, health care reform, the Health Insurance Portability and Accountability Act (HIPAA), the Consolidated Omnibus Budget Reconciliation Act (COBRA), and the Employee Retirement Income Security Act (ERISA). He helps clients with life, health, and disability benefits, cost containment, flexible benefits, and claim consulting.

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