In a surprise move, Supreme Court offers compromise on contraceptive issue

Just when HR pros were all but certain the Supreme Court was going to issue a split decision in the case centering on the Affordable Care Act’s contraceptive coverage mandate, the High Court surprised everybody by doing something it hasn’t done in well over half a century.  

At issue in the Supreme Court case was a religious objection to ACA’s contraceptive coverage mandate.

As HR pros know, the healthcare reform’s birth control mandate requires companies to cover insured employees for the use of all contraceptives without any cost-sharing.

This isn’t the first time religious groups have objected to the contraceptive coverage mandate, but it seemed as if the Obama administration eased their concerns when it carved out a religious exemption to the mandate. Under the exemption, religious groups would simply have to fill out a form, submit it to their insurer and then they wouldn’t have to provide the coverage that went against their beliefs — the feds would do it for them.

Problem solved, right? Many religious organizations seemed satisfied with the exemption, and it has worked well since it took effect a few years ago. But some more conservative groups felt the exemption doesn’t actually go far enough.

Their reasoning: By signing the exemption form, they were directly enabling someone to provide the contraceptive coverage, which essentially makes them complicit in something that goes against their religious beliefs.

And that’s what was at the heart of  Zubik v. Burwell.

Writing on, Dahlia Lithwick summed up the complicated case like this:

“While churches, synagogues, and mosques were exempted from the Affordable Care Act’s employer-provided contraception requirement, religious nonprofits that object to affording their workers birth control were granted the aforementioned accommodation. So these employers are no longer on the hook and the insurance companies provide the contraception directly themselves—from separate funds and using separate communications. In these seven consolidated cases, the nonprofit objectors have claimed that the very act of filling out the form requesting the accommodation, or notifying the government, itself triggers something they deem to be a sin.”

A supplemental solution

While many media outlets were reporting the Supreme Court was likely to come to a 4-4 deadlock, the Court decided to take an outside-the-box approach to the issue. Rather than coming to a decision based on the facts of the case, the Court offered its own compromise to the parties involved and asked if they’d agree to that compromise.

How rare was such a move? Well, the last time the Court did something like this was back in 1953, during the landmark case Brown v. The Board of Education of Topeka.

Here was the Court’s latest compromise proposal: Objecting religious organizations can get a contraception-free insurance plan and the organization’s insurance company would provide the required contraceptive coverage via a supplemental plan. Result: Employees get all of the coverage they are entitled to under Obamacare, and the objecting religious organizations aren’t complicit in providing coverage that violates their religious beliefs.

Both the government and the conservative non-profit organizations said they’d accept the High Court’s compromise.

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