Both sides open to compromise on ObamaCare birth control case

Both sides are signaling some openness to a compromise floated by the Supreme Court in a case over ObamaCare’s contraceptive mandate. 

In new briefs filed to the Court, the Obama administration and religious nonprofits challenging the current system responded to the Supreme Court’s unusual order asking for responses to a possible compromise on the case. 

{mosads}The Obama administration maintained its position that the current accommodation for religious nonprofits is lawful and does not need to be changed. But it also added that if a change is required, then the court should make clear that employees of the religious nonprofits will still have access to contraceptive coverage in some form and that the new system is lawful, preventing yet another lawsuit from going forward. 

The religious nonprofits, meanwhile, more enthusiastically welcomed the court’s proposed compromise, saying it was one of “many ways” of setting up a system that would be better than the current one. 

“There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order,” they wrote. 

The new briefs are in response to a March 29 order from the court that floated a compromise in the case and asked both sides to respond. 

The order from the court provided an example of a system where employers informed their insurance company of their objection to contraceptive coverage at the time the employer signed up for insurance in the first place, eliminating the need for a separate form. 

The goal, the court said, is to address how employees could still get contraceptive coverage “but in a way that does not require any involvement” from the religious employers, meaning they would not have to sign the form that they currently object to. 

The central issue of the case is that religious nonprofits object to the the current system, wherein they fill out a form notifying their insurer of their objection to covering contraceptives, and the insurer then pays for the contraceptives separately. The religious nonprofits argue that filling out this form still makes them complicit in providing the contraceptive coverage. 

The Court’s unusual order considering a compromise could be a way to try to avoid a 4-4 split decision, which appeared likely after oral arguments in the case last month. 

Each side will now respond to the other’s brief by April 20.