The blog in a nutshell

The blog in a nutshell
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Tuesday, March 29, 2016

In which I pretend that someone important reads my blog:


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.



*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.



6 comments:

  1. I guess it's possible that there are four votes for the objectors' "hijacking" theory, but only three (or less) for the "notice" theory, and the result will be a 5-3 opinion saying that the objectors weren't substantially burdened because contraception could be provided without their notice, and declining to reach the "hijacking" theory at this time. Ordinarily, I don't think they'd punt on hijacking, but this is not an ordinary situation; they may be figuring that by the time the case comes back on that theory, they'll have 9 justices.

    I don't think they're planning to follow the Eighth Circuit's reasoning. The Eighth Circuit bought the argument that there were accommodations outside the plan that the government should be offering. The order doesn't seem to be interested in that argument. But if no one can come up with a way to use the plan without notice from the employer--and I don't see what it is--then I'm not sure what happens. Maybe a sort of negative notice, whereby employers must affirmatively indicate that they authorize their insurers to provide contraception coverage, and a failure to so indicate means that they aren't authorizing it but insurers are supposed to anyway without charging the employer? It comes to the same thing, but arguably there's less "complicity" this way.

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    1. Ugh, I had a long response to this and my computer froze!

      To very shortly summarize my response:

      1) Thanks for the insightful comment

      2) I don't think they're going to follow the Eighth Circuit's reasoning outright, but instead referred to it because I think there might be a compromise that involved a more narrowly tailored response to the notice objection, but no "relief" for "hijacking"

      3) I say this because Kennedy seemed pretty clear that he thought there was a substantial burden at oral argument on hijacking. The Order either fundamentally misunderstands the hijacking argument-which is indeed possible-or retreats from it. If it does the latter, that suggests that either someone had a major change of heart or that there's some kind of negotiation going on.

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    2. "come up with a way to use the plan without notice from the employer."

      Two possible solutions that may or may not work:

      One, an employee who wants the coverage can trigger the notice requirement by informing the government. I saw that suggested in one of the objectors' briefs, although the objector said it was insufficient to solve the "hijacking" burden.

      Two; as I suggested in my prior post which seems to be part of the Court's hypo: the very fact that the objector requests a contraception-free plan provides notice to the insurer that he needs to provide accommodation-based insurance.

      There are some significant issues with both solutions, including how the employer can verify or challenge the sincerity of the objection, how the government can verify compliance, and - when an employee provides notice to the government - how the government can verify the accuracy of the employee's statement that the plan does not currently meet the contraception mandate requirements. But it's not like the current government regulation is perfect, either.

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    3. One, an employee who wants the coverage can trigger the notice requirement by informing the government.

      Possible. But why inform the government? Why not just inform the insurer? That would seem to be quicker and less burdensome. I guess the idea is that the government needs to be able to verify compliance, but surely there's a way to do that without having every single employee request for contraception coverage go through the government.

      the very fact that the objector requests a contraception-free plan provides notice to the insurer that he needs to provide accommodation-based insurance.

      I'm not sure I see the distinction between this and the letter/form they presently object to. In both cases, they're signing something saying "we object to you providing contraception under this plan," which ultimately leads to contraception being provided under the plan. The case is all about incredibly ephemeral distinctions, of course, so maybe there's a difference that I'm not seeing.

      (Appreciate your comments at Volokh. Real head-against-brick-wall situation over there.)

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    4. The Order either fundamentally misunderstands the hijacking argument-which is indeed possible-or retreats from it.

      I would bet on the latter, or at least that the Court is looking for a way to avoid the hijacking argument right now. I do think the objectors' brief will be interesting for that very reason: they have to decide on whether to double down on hijacking (on the assumption that the Court misunderstood) or accept that the Court doesn't seem to want to go with them on that. They have some pretty good lawyers who, I think, will push them toward acceptance, but you never know.

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    5. And just to follow up on my own comment:

      I'm not sure I see the distinction between this and the letter/form they presently object to. In both cases, they're signing something saying "we object to you providing contraception under this plan," which ultimately leads to contraception being provided under the plan.

      ...as you say, the order itself offers this as an "example," and I'm sure the objectors are scratching their heads and wondering why the Court thinks that's different from the status quo. And as you say, they may be inclined simply to say "we'll do that," with perhaps some minor additional window dressing whereby the insurer has to declare from the rooftops that the employer isn't responsible for the coverage, and declare victory. It would be a climbdown from the "hijacking" theory, to be sure.

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