More Briefing Ordered in Contraceptive Mandate Case

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By Mary Anne Pazanowski

March 29 — The Supreme Court March 29 ordered the parties to file supplemental briefs in a case involving the Affordable Care Act's contraceptive mandate.

The case involves a challenge brought by nonprofit religious groups to an accommodation that allows them to opt out of providing group health insurance required by the ACA that covers products and services to which they have religious objections. They have argued that requiring them to inform the Department of Health and Human Services of their objections in writing compels them to participate in providing, funding or enabling employees to obtain services they deem to be sinful and/or results in the government hijacking their health plans.

The Supreme Court heard oral argument in the case March 23, where the Obama administration maintained that the accommodation is the best way of ensuring the groups' employees have access to no-cost coverage for essential health-care services without requiring the employees to obtain secondary policies—a move that wouldn't serve the government's compelling interest, it said .

The court's order directs the parties to file supplemental briefs addressing “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.”

Currently, the groups must tell the HHS in writing that they object to providing the coverage on religious grounds. The justices asked the parties to discuss in their briefs “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

The parties' main briefs are due on or before April 12, with reply briefs due on or before April 20, the order said.

Positive Sign

Attorneys on both sides of the issue saw the court's request as a positive sign.

This signals that the justices have moved away from considering the alternatives to coverage through employer-provided health plans, which the nonprofit groups have proposed and discussed at oral argument, and back to making sure employees receive coverage through normal channels, Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center in Washington, told Bloomberg BNA March 29.

It “seems unlikely” the groups would find acceptable any process by which their employees could receive contraceptive coverage through their employer-based plans, she added.

“This is an excellent development,” Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, Washington, said in a statement e-mailed to Bloomberg BNA March 29. The Becket Fund represents one of the nonprofits involved in the action, the Little Sisters of the Poor. “Clearly the Supreme Court understood the Sisters' concern that the government's current scheme forces them to violate their religion,” Rienzi said.

Rienzi added he is looking “forward to offering alternatives that protect the Little Sisters' religious liberty while allowing the government to meet its stated goals.”

The Department of Justice didn't respond to Bloomberg BNA's request for comments.

To contact the reporter on this story: Mary Anne Pazanowski in Washington at

To contact the editor responsible for this story: Janey Cohen at

For More Information

The order is at

Request Health Care on Bloomberg Law