Mark Goldfeder
“The way this case has often been portrayed in the media, it has been about a clash between religious liberty and reproductive rights,” Mr. Goldfeder said in an interview. “As became clear in the arguments today, that is a false dichotomy, and a false narrative.”
Foreshadowing their latest move, justices and attorneys spent ample time arguing over whether an alternative paperwork process could satisfy both parties. Justice Alito asked whether it was possible that patients who do not get contraceptive coverage from their religious nonprofit employer could obtain a free contraceptive-only policy through the ACA insurance exchanges.
Solicitor General Donald B. Verrilli, Jr. dismissed that proposal.
“It’s not a less restrictive alternative because it has precisely the problem Congress was trying to overcome in the preventive services provision,” he said. “That [proposal] is not equally effective at achieving the government’s interest, because the whole point of this provision is that you get this care from your regular doctor as part of your regular health care without any barriers, including any copay barriers.”
The justices have several options in deciding the case, including choosing to rehear arguments at a later date. The Feb. 13 death of Justice Antonin Scalia could also mean a 4-4 split decision. If such a division occurs, the lower court rulings would stand.
“The impact will be that women employed by nonprofits in the 8th Circuit will be denied contraception coverage, but that women in all the other circuits will receive the coverage,” Ms. Hamilton said. “And we’ll be back to not having an answer from the Supreme Court. So all of the machinery that went into play for consideration of this case ... all of the entities that worked on it, will have to repeat itself. It will turn the whole exercise into something of a joke.”
In the two-page order issued March 29, the justices encouraged both parties to suggest ways in which the plaintiffs would have no legal obligation to provide contraceptive coverage, would not have to pay for such coverage, and would not be required to submit any separate notice to insurers, the government, or employees. New briefs are due by April 20.
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