After oral arguments concluded in the most significant U.S. Supreme Court case this term dealing with the Affordable Care Act (ACA), Zubik v. Burwell, justices asked both sides to file additional briefs suggesting ways the federal government could accomplish the objective of a U.S. Department of Health and Human Services (HHS) mandate without forcing employers to violate their religious beliefs.
The Court directed petitioners and the government on March 29 to “address whether and how” employees might obtain contraceptive coverage through their employer-provided health insurance plans “in a way that does not require any involvement of petitioners,” SCOTUSblog states. Petitioners had argued on March 23 an HHS mandate effectively requires employers such as Priests for Life and Little Sisters of the Poor to aid HHS and insurers in offering health plans with provisions contrary to the employers’ religious beliefs.
‘The Government Loses’
Josh Blackman, associate professor of law at the South Texas College of Law and author of Unraveled: Obamacare, Religious Liberty, and Executive Power, says the Court’s request indicates the justices believe the mandate fails to use the least restrictive means to accomplish the government’s interest.
“The way that [the federal Religious Freedom and Restoration Act] works is if the government can achieve the same interests without imposing a burden on religion, then the current accommodation fails,” Blackman said. “The fact that the Court suggested that there might be some other way of accomplishing that means the government loses its case. The government’s case was not as strong as they thought it was.”
‘House of Cards’
A patchwork of conflicting rulings would remain in effect if the Court ties 4–4 this summer, which is possible because Congress and President Barack Obama disagree on a replacement for the late Justice Antonin Scalia, who died on February 13. Employers would be required to comply with the decisions of their regional U.S. Circuit Court of Appeals, which disagree with one another on the constitutionality of the mandate.
Blackman says the 2016 election may render the HHS mandate moot.
“If Ted Cruz or Donald Trump is president, there’s a good chance they’ll just rescind the mandate,” Blackman said. “That’s the danger of using executive action. What executive action giveth, executive action taketh away. The entire Obama regime is built on a house of cards that could topple very quickly.”
Ben Johnson ([email protected]) writes from Stockport, Ohio.
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