In an unusual move, the Supreme Court asked the challengers in Zubik v. Burwell to provide the court with other alternatives for birth control coverage. The challengers in the case objected to Obamacare’s given opt-out for religious groups who believe that providing contraception was a violation of their religious ideologies. Today, SCOTUS told the challengers to brief the court on other contraceptive coverage that women who work for these institutions could access.


The challengers in Zubik v. Burwell, which SCOTUS heard last week, argued that the accommodation for religious groups, which essentially amounted to filling out a form, imposed an undue burden on them—because, as Talking Points Memo reports, “it triggered the process for employees to receive contraceptive coverage from outside their plans.”

During the oral arguments, there was incredible confusion among the male justices about how women who worked for these non-profits would obtain contraception coverage if SCOTUS disallowed the challenge. One of the fundamental misunderstandings was that many of the male justices (Roberts, Kennedy, and Alito especially) seemed to think that insurance exchanges provided individual contraceptive coverage and that women could easily purchase an insurance plan that would only cover birth control.

“If it’s so easy to provide, if it’s so free, can’t they just get it through another plan?” Kennedy asked Solicitor General Donald Verrilli, referring to the idea that women could simply go to insurance exchanges and purchase contraception coverage.


“So it comes down to a question of who has to do the paperwork? If it’s the employee that has to do it, that’s no good. If it’s the religious organization that has to do it, that’s okay?” Roberts asked as a follow-up—again, under the impression that contraception coverage can be purchased in Obamacare exchanges as a stand-alone thing.

Sotomayor finally attempted to clear everything up:



“They’re not on the exchanges. That’s a falsehood. The exchanges require full-service health insurance policies with minimum coverages that are set forth that are very comprehensive.”

But, apparently, SCOTUS had more questions after the oral arguments. TPM reports that briefs ordered by the court should 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.”


“The parties may address other proposals along similar lines, avoiding repetition of discussion in prior briefing,” the order said, which suggests that the alternatives the challengers offered in their initial briefs, which mainly argued coverage could be provided directly by the government or through programs funded by the government, would not suffice.

TPM speculates that the order could mean that SCOTUS is searching for a compromise. If the case resulted in a 4-4 tied court, that could mean that women employed at religious organizations in some states would have coverage, while women in other states would not. Essentially, women’s coverage would be determined by the rulings of lower courts, which were divided on the issue.

The challengers have until April 12 to respond.

Image via Getty.