(Bloomberg View) — It’s happening: The Supreme Court is getting desperate.
With a 4-4 tie looming over whether religious organizations have to file a form with the government requesting an exemption from the mandatory contraceptive care requirements in the U.S. Department of Health and Human Services (HHS) implementation of the the Patient Protection and Affordable Care Act (PPACA) preventive services package provisions, the justices took an extreme step.
They issued an order that basically told the federal government and the religious entities to reach a compromise — and described what the compromise would look like.
Federal district court judges will sometimes tell the parties that they’d better compromise, or else they might not like the results that will follow. The Supreme Court essentially never does, both because it lacks leverage and because it gets involved in cases with the intention to make new law, not to resolve particular disputes.
But we’re in new territory here. The Supreme Court is trying to figure out how to do its job with eight justices — a situation that might persist not just through this Supreme Court term, but through the next one as well, because of the Senate’s apparent lack of interest in confirming a ninth justice.
The oral argument last week in the case that includes Burwell v. Little Sisters of the Poor (as well as several other consolidated cases) demonstrated the near certainty of a 4-4 split. The argument clarified the core conflict in the case: The exemption sought by the religious organizations was the very thing that the Obama administration said it wanted, namely for the employees of the religious organizations to get contraceptive care from the same insurer and health care providers from which they get the rest of their coverage.
The religious organizations said that under the system created by HHS, their free exercise of religion was burdened. Under the existing system, the organizations file a form with the government explaining that they don’t want to cover contraception. The government then tells their insurers to provide the coverage and to pay for it.
According to the religious organizations, this system amounts to a “hijacking” of their health care plan to provide the contraceptive care that they consider immoral. At oral argument, the religious organizations embraced the analogy that this is like the government using an empty room in their buildings to provide the contraceptive care.
Yet the solicitor general explained to the court that the government considered it essential for employees to receive “seamless” care, meaning that they would receive their contraceptive care from their usual insurer and provider. This made the case look like a conflict between an unstoppable force and an immovable object.
The Supreme Court’s order tries to resolve this conflict. The order was framed as a command for more briefing by all the parties — something that happens occasionally at the court, even after oral argument.
In its essence, however, the order described a potential compromise. It said first that the parties should consider a plan in which the religious organizations don’t need to give the government notice that they don’t want to provide contraceptive care. Instead, the organizations could just tell their insurers that they don’t want to provide contraceptive care for religious reasons.