In which I pretend that someone important reads my blog:

From a prior post:

So after the oral argument today, it appears strongly possible, perhaps likely, that we are headed for a 4-4 split.

....

[Regarding what might happen in the Eighth Circuit:]

So no notice, fine.  But what if the government decides (properly, changing whatever regulations might otherwise disagree) that no notice is necessary?  Instead, as suggested in the objectors' brief to the Supreme Court, an individual's notice suffices.  And so the Michigan employee who is very upset calls and tells the HHS that they aren't providing the health care in question.  What then?
I think the right answer is that the Government can call the insurer or third-party administrator up and tell them they have to provide that coverage (or, heck, they can probably require the third party administrator, known as a TPA, or insurer do it even without notice, because the fact that the proposed coverage *doesn't* cover contraception is probably sufficient constructive notice).  Presumably, the insurer will then provide coverage.  

In a surprise move, today, the Court asked the following question:

The parties are directed to file supplemental briefs that 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. 

Petitioners with insured plans are currently required to submit a form either to their insurer or to the Federal Government (naming petitioners’ insurance company), stating that petitioners object on religious grounds to providing contraceptive coverage. The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.  

For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage, and would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.
The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing.

Such a solution would invariably not solve the "hijacking" burden that objectors claim because insurance would still be provided through "their insurer."   It would instead be based on the "notice" objection that got no play during oral argument, except to the extent objectors said that relief on that ground alone would be insufficient.

Here's what I don't think happened.  I don't think there are any Justices who reject the "hijacking" theory but buy the "notice" theory of substantial burden.  But I do think they are looking at the Eighth Circuit decision, which did precisely that.  And now they have to solve the question about what to do about it.  A decision that requires them to conform to the Eighth Circuit's reasoning, but no further, could create uniformity and resolve chaos.  A fifth vote - or more - might coalesce on that ground, because conservatives are unlikely to do any better, even in the Eighth Circuit,* and liberals allow the government a way to ensure that another accommodation does not get struck down.  For the liberals to get on board, however, they must believe that such an accommodation can work in practice.  

So I think the objectors' brief won't be very interesting.  But the government's brief will likely be very interesting, because the government has a real decision about whether to stick to its guns and risk a 4-4 split, or allow the regulation to be rewritten (which takes time, and during which there may be no accommodation), and maybe get a majority.

Ah, the law as sausage.

*The Eighth Circuit technically did not reach the "hijacking" question, so in theory if the notification "burden" is eliminated, someone might still be able to challenge that in the Eighth Circuit after a 4-4 affirmation, and the Eighth Circuit might rule that even without notice, the contraception accommodation remains a substantial burden that is not narrowly tailored.  But so much would have to happen before such a ruling (whose geographic applicability is questionable), that keeping the possibility alive may not be worth the effort from the eyes of some conservative Justices.

UPDATE:  On thinking about it, there appears to be at least the possibility that the Court might coalesce around some alternate-hijacking argument, where as long as the insurer does something to segregate the contraception coverage from the rest of the coverage in some superficial way, there is no "hijacking."  I don't think this really helps, because what the objectors are really asking for is a right to contract with their insurers in a way to require them not to issue contraception coverage to their employees.  But it's possible that the objectors might strategically retreat to get a minor victory.  Unlikely, but worth reading the objectors' brief for that reason.