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Newport News Times, 29 June 2016
By Nel Ward, Central Oregon Coast Chapter of the National Organization for Women (NOW)
WASHINGTON — The Supreme Court, in an unsigned unanimous opinion, announced on Monday that it would not rule in a major case on access to contraception, instructing lower courts to explore whether a compromise was possible.
The ruling was the latest indication that the eight-member Supreme Court is exploring every avenue to avoid 4-to-4 deadlocks, even if the resulting action avoids deciding the question it had agreed to address.
The case, Zubik v. Burwell, No. 14-1418, was brought by religious groups that object to providing insurance coverage for contraception to their female workers.
Less than a week after the case was argued in March, the court issued an unusual unsigned order asking the parties to submit supplemental briefs on a possible compromise. In Monday’s ruling, the court said those briefs suggested that a compromise was possible, but that it should be forged in the lower courts.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage,’” the court said, quoting from a brief filed by the government.
The Supreme Court urged the lower courts to “allow the parties sufficient time to resolve any outstanding issues between them.”
The justices stressed that they were deciding nothing.
“The court expresses no view on the merits of the cases,” the opinion said. “In particular, the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”
Justice Sonia Sotomayor filed a concurrence, which was joined by Justice Ruth Bader Ginsburg, underscoring the limited nature of the court’s action and cautioning lower courts not to read anything into it.
“Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice,” she wrote. “As enlightened by the parties’ new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”
The case was the court’s second encounter with the contraception requirement and the fourth time it has considered an aspect of President Obama’s health care law, the Affordable Care Act. It built on one from 2014, Burwell v. Hobby Lobby Stores, which said a regulation requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority, said there was a better alternative, one the government had offered to nonprofit groups with religious objections.
That alternative, or accommodation, was at issue in the new case. It allowed nonprofit groups like schools and hospitals that were affiliated with religious organizations not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they sought an exemption.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violates their faith.
The groups added that they should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship are not subject to the coverage requirement at all and do not have to file any paperwork if they choose not to provide contraception coverage.
At arguments in March, 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.
Days later, the court called for more briefs in an order that 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.”
The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.
On Monday, the court said the unusual tactic had worked and that both sides “now confirm that such an option is feasible.”
The religious groups, the court said, quoting their brief, “have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”
“The government,” the court continued, “has confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner posited in the court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’”
Most federal appeals courts have ruled for the government in challenges to the accommodation.
Among the religious groups challenging the accommodation are an order of nuns based in Baltimore called the Little Sisters of the Poor, which operates nursing homes around the country. The nuns object to playing any role in providing any of the forms of contraception approved for women by the Food and Drug Administration.
Other challengers only object to covering intrauterine devices and so-called morning-after pills, saying they are akin to abortion. Many scientists disagree.
The religious groups sued under the Religious Freedom Restoration Act of 1993, which says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny.
The two sides differed about whether the accommodation was such a burden. The religious groups said that adhering to their faith would subject them to crushing fines in the tens of millions of dollars.
“The government wants petitioners to do precisely what their sincere religious beliefs forbid — and it is threatening them with draconian penalties unless they do so,” Paul D. Clement, a lawyer for several religious groups, told the justices in a brief.
Solicitor General Donald B. Verrilli Jr., in a brief for the Obama administration, said, “We do not question the sincerity or importance of petitioners’ religious beliefs.” But, he added, “a sincere objection to opting out of a legal requirement based on the knowledge that the government will then arrange for others to fulfill the requirement does not establish a substantial burden.”
Some protected women from “the embarrassment of hearing filthy evidence” as members of a jury, a sheltering instinct that resulted in female defendants being judged by panels composed only of men.
Some shielded women from having to work nights as pharmacists in hospitals – but not as low-wage custodians.
Some barred women from working as bartenders – jobs coveted by men – but not as cocktail waitresses.
The brief is filed by professors from across the country in the court’s upcoming abortion case, Whole Women’s Health v. Hellerstedt. The brief urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.
“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.
It is part of an avalanche of amicus briefs filed by both sides in the case, which will be the court’s most important look at abortion rights in decades.
And the attempt at persuasion, like many of the others, is representative of a specialized brand of legal brief that aims to school the court not about law but about life.
“Brandeis briefs” are long on history and science and short on detailed legal citations. The first of its kind was filed in 1908 by lawyer Louis D. Brandeis, who eight years later became famous as the first Jewish Supreme Court justice.
Last month, Justice Ruth Bader Ginsburg discussed the importance of the revolutionary brief at – where else? – Brandeis University, in Waltham, Mass., at a ceremony marking the centennial of his Supreme Court appointment.
Brandeis’s submission “was unlike any the court had yet seen. It was to be loaded with facts and spare on formal legal argument,” Ginsburg said. The facts consumed 98 of the brief’s 113 pages.
“The aim of the Brandeis brief was to educate the judiciary about the real world in which the laws under inspection operated,” Ginsburg said.
Some have criticized such briefs as a way to bring before the justices arguments and unverified conclusions that are outside the record.
But they are an important part of modern life at the court, and both the Texas attorney general and the Center for Reproductive Rights lawyers challenging the state’s law make great use of them.
The one that has gotten the most attention is a brief filed by 113 lawyers who recount their own abortions and say they “would not have been able to achieve the personal or professional successes they have achieved” without access to the right.
It is answered by a “Brandeis-style brief” in which the group Priests for Life “presents to this court the compelling testimonies of individuals who have been harmed by the adverse effects of abortion.”
There are similar competing visions on both sides from physicians to social scientists and legal scholars.
What makes the feminist historian offering stand out is that it is, in effect, a Brandeis brief that seeks to refute the original Brandeis brief.
“You noticed,” said San Francisco lawyer Kenneth M. Fong, who wrote the brief with colleague Christine A. Scheuneman.
Brandeis’ 1908 brief was filed in Muller v. Oregon, defending that state’s law limiting the daily hours of women working in factories and laundries (but not those of males). Brandeis argued that it was constitutional for the state to recognize the differences between the sexes.
According to one source quoted in his brief, for women, “free time is no resting time, as it is for a man.” A “working girl” should be “learning to keep house if her future household is not to be a disorderly failure.”
He added: “The overwork of future mothers directly attacks the welfare of the nation.”
The court upheld the law unanimously, and Ginsburg said “New Deal-oriented professors” in her late-1950s law classes taught the case as a triumph for the efforts to improve conditions and the lives of workers. The Oregon law was meant as a first step in limiting hours for all workers.
If she disagreed with the substance of Brandeis’s arguments, Ginsburg liked the tactic. In her speech at the university, she said that “copying Brandeis’s method” was useful in her efforts as a lawyer challenging laws that treated men and women differently.
“Laws once thought to operate benignly in women’s favor – keeping them off juries and relegating them to ‘women’s work’ in the military, for example – in time came to be seen as measures impeding women’s opportunity to participate in and contribute to society,” Ginsburg said.
The Brandeis brief had come full circle, and not surprisingly, the historians’ effort notes Ginsburg’s victories at the Supreme Court, and echoes her arguments from decades ago.
“Even when protection is a genuine goal, not a pretext, and even where an apparently protective regulation in theory might serve to safeguard health, such laws may function in practice to limit women’s freedom and autonomy,” it says.