Supreme Court Hints at Way to Avert Tie on Birth Control Mandate

The Supreme Court on Tuesday issued an unusual order indicating that the justices are trying to avoid a 4-to-4 deadlock in a case pitting religious freedom against access to contraception.

The order, which was unsigned, directed the parties to file supplemental briefs in Zubik v. Burwell, No. 14-1418, which was argued on Wednesday. The case was brought by religious groups that object to providing insurance coverage for contraception to their female workers.

Women are guaranteed access to that coverage under the Affordable Care Act. After the religious groups said paying for such insurance made them complicit in sin, the Obama administration offered the groups an accommodation: If they object in writing and provide information about their insurance plans, the administration said, insurance companies and the government will pay for the coverage.

At Wednesday’s arguments, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.

Tuesday’s order asked the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

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