After years of litigation over the Health and Human Services contraceptive mandate, the Obama administration signaled yesterday that it could make further changes to the controversial accommodation it provided the Little Sisters of the Poor and many other religious nonprofits.
Could this new admission undermine the government’s case? That’s the question now.
When March 23 oral arguments in Zubik v. Burwell revealed weaknesses in the government’s case, the justices unexpectedly issued a March 29 order that directed the both sides to offer fresh solutions to the impasse.
The plaintiffs and the government were each told to provide a formal response to the following question:
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.
In its supplementary brief issued yesterday, the government said the accommodation “could be modified to operate in the manner described in the Court’s order—but only at a real cost to its effective implementation.”
That striking admission, accompanied by a lot of grumbling, raised a red flag for Michael McConnell, a leading authority on religious freedom at Stanford University law school. In comments cited in an April 13 post on The Volokh Conspiracy blog at the Washington Post, McConnell said the justices’ question “put the government in a bind. If it answered ‘yes,’ it would effectively be admitting to a RFRA violation. But if the government said ‘no,’ it would be appearing unwilling to work with the Court on a solution that will satisfy both sides.”
It should come as no surprise that the brief submitted by the Little Sisters’ lawyers adopted a brighter tone.