As I discuss in Unraveled, the Supreme Court’s remand in Zubik was a delusional punt: there was no compromise to be had over self-insured plans, yet the Court pretend the parties were close to a deal. After the remand, the Obama administration issued a Request for Information about possible arrangements that would satisfy all objections. None were to be found.
In a new FAQ from the Labor Department (which has jurisdiction over ERISA), the Obama Administration acknowledged that “no feasible approach” could be identified.
Q: ARE THE DEPARTMENTS MAKING CHANGES TO THE ACCOMMODATION AT THIS TIME?
No. As described in more detail below, the comments reviewed by the Departments in response to the RFI indicate that no feasible approach has been identified at this time that would resolve the concerns of religious objectors, while still ensuring that the affected women receive full and equal health coverage, including contraceptive coverage. The comments demonstrate that a process like the one described in the Court’s supplemental briefing order would not be acceptable to those with religious objections to the contraceptive-coverage requirement. Further, a number of comments illustrate that the administrative and operational challenges to a process like the one described in the Court’s order are more significant than the Departments had previously understood and would potentially undermine women’s access to full and equal coverage. For these reasons, the Departments are not modifying the accommodation regulations at this time.
Specifically, the FAQ states that adopting the Court’s proposed solution does not address the religious objections:
In light of the comments received, the Departments have determined not to amend the regulations at this time. On the one hand, comments from parties before the Supreme Court (and other objecting employers) do not suggest that the change identified by the Supreme Court would resolve their concerns. On the other hand, the Departments received comments stating that eliminating written notification would create significant administrative problems and potential legal liabilities for issuers, and would hinder women’s access to care. As described in greater detail below, these comments have shown that the elimination of the written notification requirement would raise complications that would undermine the statute’s goal of ensuring full and equal health coverage for women, the extent of which were not known to the Departments at the time the government filed its supplemental briefs in Zubik.
I could have predicted this impasse based on the supplemental briefings in Zubik. The parties acknowledged there was a huge gap between their positions that could not be reconciled. The Supreme Court pretended that problem didn’t exist. In all likelihood, the Eight Justices thought that by punting, the case would come back up with a ninth Justice. But to everyone’s surprise, Trump won! And now, through executive action, he can resolve this dispute. As I noted during a panel on reproductive justice at AALS, the Obama administration’s decision to define “preventive care” in a blog post (seriously), and not through the notice-and-comment process, means that the new administration can simply modify the sorts of products that insurers are required to provide. With a small tweak, any insured entity with a bona fide religious objection can simply request that birth control be excluded from their plans. For affected employees, the government can offer contraceptive coverage through different means that do not impose a substantial burden on religious exercise. (That coverage could be provided through alternate means suggests that the accommodation was never the “least restrictive means.”).
As an aside, the Labor Department actually cites SCOTUSBlog for links to their briefs!