A surprising twist in Obamacare contraceptive mandate case

The Supreme Court took a highly unusual step this week when it proposed a compromise to the parties in the case challenging the ACA's contraception mandate for religious organizations, Zubik v. Burwell.  The Court usually rules on actions that the parties themselves have implemented or proposed, and it is rarely so proactive.

The mandate requires employers to cover contraceptives in their health plans without co-pays or deductibles.  The Obama administration has proposed an accommodation for religious organizations, like hospitals and universities, under which they can file an objection to the coverage and let the government pay for it.  However, several organizations challenged the rule, claiming that it still makes them complicit in facilitating contraceptive access.  The Court asked the parties to submit briefs reacting to a proposal in which religious organizations would notify their employees that contraceptives are not covered, and the employees could then request it from the insurance plan at government expense.

In oral arguments in the case last week, the Court seemed to split along ideological lines, which are at equal strength with the death of Antonin Scalia.  If the proposed compromise is accepted by the parties, it could avoid a  tie that would leave the underlying issue unresolved.  The Court's apparent effort to broker a deal suggests that at least some of the justices are eager to avoid that result, perhaps to limit the issue's influence in the presidential race.

It remains to be seen how the parties will react.  If they accept it, the Supreme Court may have saved a part of Obamacare again, as it did in 2012, in a surprising way.

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