The Supreme Court is having a hard time accepting the deadlock that Justice Antonin Scalia’s death provoked.

The eight member court is taking unusual steps in an apparent attempt to avoid a tie vote on an explosive case over the Patient Protection and Affordable Care Act’s (PPACA) contraception mandate.

On Tuesday, the court asked the parties in the case, Zubik v. Burwell, to file supplemental briefs.

The court asked the parties to “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,” according to the New York Times.

“It is certainly the rare case where a court seeks supplemental briefing after the case has been argued,” Ralph Tyler, a former chief counsel to the FDA and former Maryland insurance commissioner, told BenefitsPro. “This is certainly not the standard or normal process.”

It is impossible to know what the justices are thinking, said Tyler, but their request suggests they are trying to find a way to better understand the potential consequences of their positions beyond the constitutional implications.

“They raise policy issues, they raise practical and logistical issues,” Tyler said.

The unusual request comes six days after the court heard oral arguments from the religious groups challenging the mandate and the Obama administration, which is defending it. The justices’ comments in response to the parties’ arguments suggested they were heading for a 4-4 split along familiar ideological lines, with the four liberal justices inclined to rule in favor of the mandate and the four conservatives poised to rule against it.

Court watchers assume that the justice most likely to be on the fence is Justice Anthony Kennedy, a right-leaning jurist who nevertheless comes closest to being a “swing vote” on the court. Then again, in the landmark 5-4 decision that upheld the PPACA in 2012, it was Chief Justice John Roberts, not Kennedy, who outraged conservatives by siding with the Obama administration.

In the 2014 Hobby Lobby v. Burwell decision, Kennedy, Roberts, and three other conservatives (including the now-deceased Scalia) ruled that closely held corporations could refuse, based on religious views, to pay for contraception in their employee health plans.

From the beginning of the PPACA’s implementation, the Obama administration has sought to broach a compromise with organizations that claim religious objections to contraceptives. If the employer notifies the government of its objection, the insurer providing the employees coverage will pay for contraception, rather than the employer.

But that raises the question: Doesn’t the insurer inevitably pass the costs on to the employer?

Tyler agrees, saying the lawsuits from religious groups, including in the current case, highlight “the difficulty of finding a solution which completely removes the religious organizations from the process.”

If the court deadlocks on the case, the decisions of lower circuit courts will stand. The problem, of course, is that the lower courts have not all ruled the same, meaning that the law will be different depending on what judicial circuit an employer is located. As for employers located in different jurisdictions? It’s anybody’s guess.

Instant Insights /

Supreme Court trying to avoid deadlock on PPACA contraception mandate

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