In Zubik v. Burwell, the set of cases in which the Little Sisters of Poor and several other religious nonprofits are challenging the right of the U.S. government to force them participate in the delivery of contraceptives, including abortifacients, via their Obamacare-mandated health insurance plans, the Supreme Court took an unexpected step on March 29 — and the results are starting to come in.
Before the tragic death of Justice Antonin Scalia, this case was expected to be a 5-4 victory for the nonprofits. Without him, it was expected to be a 4-4 tie, leaving intact (but without the binding effect of precedent) all the cases that had been consolidated under the Zubik name — all but one of which had gone against the nonprofits.
Neither is happening. On March 29, after hearing oral arguments in the case, the Court issued a most unusual order, telling both sides to file new briefs on possible options that might relieve the nonprofits of all moral complicity in evil as they see it, while still accomplishing the government’s goals. This order was given, as Supreme Court orders (but not opinions) always are, in the name of the Court as a whole, not any individual Justice or set of them.
The Court even helpfully put its own suggestion on the table, remarking that, perhaps, if mere non-inclusion of the offending devices and chemicals could, without further action by the nonprofits, signal to the insurance company that they had to provide them, and no contraception-triggering “opt-out notice” were demanded from the nonprofits (unlike the Obama administration’s present “compromise” “accommodation”), this might satisfy everyone’s consciences and we could all go get a pizza.
So far, the nonprofits seem a lot happier with this idea than does the Obama administration. With good reason: the legal foundation of the nonprofits’ case is the Religious Freedom Restoration Act, of 1993. This act requires that government’s burden on plaintiffs’ religious freedom be the “least restrictive means” possible of attaining a “compelling government interest.”
What does this tell us about the negotiations that went on among the Justices that led to their order? What do you want first, the good news or the bad news? The bad news is that there’s probably a majority on the Court who hold that providing people with free contraceptives through their government-mandate health plans is a “compelling state interest,” that is, a government task of the utmost importance. Some might argue that it’s not a government interest at all, and that people can discreetly “make a purchase” the way they did during the half-century between Griswold v. Connecticut and the kicking-in of Obamacare. But let’s leave that to one side: maybe the Court did too, and simply asked, “Is this the means that restricts liberty least?”
And there’s the good news. If there is a “less restrictive means,” then the administration loses its case a matter of law. And, in its order, there’s the Supreme Court itself suggesting that very thing — a less restrictive means. (The Court could conceivably leave the “compelling government interest” issue unresolved, finding it “unnecessary to address in light of our holding that the government has not chosen the least restrictive means,” as a hypothetical but welcome opinion might put it.)
That doesn’t mean the administration has already lost the case. If it had, the Court would have said so. But many legal questions are settled by allocation of the burden of proof, and it sure looks as though this Court has handed the administration the burden of proof here. By itself suggesting a less restrictive means of accomplishing its goal, one that the nonprofits can probably accept, the burden is on the administration to show why such an alternative “accommodation” cannot accomplish its goal. And it probably cannot meet that burden.
David Wagner is a former schoolteacher, Department of Justice speechwriter, Hill staffer, and law professor.