The cases involving religious freedom and the contraception mandate were decided yesterday. Some of the reporting discussed the case as if it showed the problems of a 4-4 division of the Justices on the Court. I do not agree. Aside from arguments about a perceived lack of justification for exempting some groups and not others from the mandate, the religious employer claimants argued that if government required the insurance companies selected by the employers to provide contraceptives over the employers’ objection, this would constitute a high jacking of the employer’s insurance program and would make them complicit in what they regard as sinful activity.
The Little Sisters and other litigants also objected to the notice required by the government. The government required that the litigants inform the government that they objected to providing contraceptives and that they include the names of the insurance companies. At oral argument, counsel for the Little Sisters said they were not objecting to the objection requirement, they were objecting to naming the insurance company. This objection was also based in a concern about complicity.
The Court then asked for briefing on the question whether contraceptives could be provided to employees through the employer’s insurance company (though not the employer's plan) with no notice to the government, but with communication by the employer to the insurance company that it did not want the plan to cover contraceptives because it objected on religious grounds. As I said in a prior post (see here, this proposal seemed to suggest that using the same insurance company was not high jacking (though there is no holding on the issue). Also assuming the high jacking issue was off the table, it was not clear to me why the Little Sisters would need to be legally obliged to provide notice. If Little Sisters wants to distance themselves from the coverage, they would have to tell the insurance company. No government regulation was needed except to make sure that when objections are made that the insurance company is required to provide contraception coverage.
In response to the Court’s request for briefing, according to the Court, the parties all agreed that the alternative notice proposal was acceptable to the parties. So understood, the high jacking and equality arguments were out of the picture. There was no need to decide the original issues before the Court, so the Court remanded to the lower courts to facilitate the settlements. The government already has had notice for some time (just not the filled out form). If there were a 5-4 split on the Court, it is possible the Court would have decided issues that did not need to be decided. The 4-4 split on the Court is generally far from ideal, but it is not at all clear that it led to bad results in these cases.
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