Robert A. Schapiro, Dean and Asa Griggs Candler Professor of Law

Unable to resolve the ACA challenge, the justices punt the case back to the parties 

What is an eight-Justice Supreme Court to do when it is deadlocked in confronting crucial legal issues, implicating vital areas of public policy?  Today, we learned one approach:  Tell the parties to find some way to work it out.

The case, Zubik v. Burwell, is a challenge to the Affordable Care Act by religious non-profit organizations who object to providing contraceptive coverage to their employees and assert that the accommodation offered by the U.S. Government does not sufficiently respect their beliefs.   In today’s order, the Court took the extremely unusual step of ordering the parties to find a mutually acceptable resolution.

This unusual disposition of the case followed a prior unusual order directing the government and the challengers to file supplemental briefs relating to a potential compromise.  While today’s ruling follows that same spirit of compromise, the order comes as a surprise because the supplemental briefs revealed deep divisions between the positions of the Government and the challengers. 

Under the current accommodation scheme, the employers provide notice of their religiously based objection, and the government arranges for the employer’s insurance company to provide the coverage at no cost to the employer.  The challengers contend that providing such notification of non-coverage effectively made them complicit in the alternative coverage plan, contrary to their religious beliefs.

In its supplemental brief, the Government acknowledged that contraceptive coverage could be provided to the employees without the employer’s providing notice, though the government cautioned that such a scheme would be quite cumbersome in operation.

The supplemental brief of the challengers, however, revealed a much deeper chasm between their position and that of the government.  The challengers insisted that any contraceptive coverage had to be truly separate from their main insurance plans, requiring separate enrollment.  That demand for separation directly contradicted the government’s central argument that the contraceptive coverage be provided “seamlessly,” together with the rest of the health coverage.

The government emphatically rejected the idea that women be required effectively to enroll in two separate policies, viewing that dual enrollment as an inappropriate burden on women’s access to contraception.

Thus, the supplemental briefs revealed that the challengers’ real objection was not about notice, but operated at a more fundamental level.  The challengers objected that by providing health coverage to their employees, as mandated by the Affordable Care Act, they triggered contraceptive coverage for their employees as part of the same insurance policy.  The complaint was not about payment or notice, but about being part of a system to provide “seamless” coverage including contraception.

That fundamental divide between the challengers and the government does not seem amenable to compromise.  The government’s goal of “seamlessness” runs exactly counter to the position of the challengers, who object to being part of a seamless plan.

The Justices must have been aware of this seeming impasse.  However, it appears that the eight Justices were divided about how to resolve the case in the face of this fundamental disagreement.  The standard practice in a deadlocked court is to affirm the lower court ruling.  In this case, though, the lowers court rulings were in conflict, rendering that disposition untenable.

Faced with their own inability to reach a definitive resolution, the best the Justices could do was to foist the controversy back on the parties.  The odds of a compromise by the parties are small indeed, but the Justices apparently could find no other compromise among themselves.

Timothy R. Holbrook, Professor of Law

SCOTUS avoids possible split, declines student loan case

What does a case about student loans have to do with transgender rights? For now, not much, but it could be harbinger for change at the Supreme Court.  Last Monday, the Supreme Court declined to take United Student Aid Funds v. Bible, which isn’t surprising—the Court, particularly with only eight justices – seems reluctant to take cases that might split 4-4. Telling, though, was Justice Thomas’s dissent, in which he expressed his view that the Court should overrule its decision in Auer v. Robbins, calling that doctrine “on its last gasp.”

The Auer doctrine requires courts to defer to an agency’s interpretation of its own regulations unless that interpretation is plainly erroneous or inconsistent with the regulation.  Auer was key to the decision by the U.S. Court of Appeals for the Fourth Circuit in G.G. v. Gloucester County School Board, where that court deferred to regulations by the Department of Education permitting transgender students to use restrooms that match their gender identity.  On May 13, 2016, the Department of Education and Department of Justice issued significant guidance as to compliance with Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs that receive Federal Financial assistance. 

 Both the Gloucester decision and this guidance from these departments are viewed as crucial to the fight for transgender inclusion, particularly in the recently filed lawsuits in North Carolina over HB2, which requires persons using restrooms in public agencies (including universities) to use the bathroom corresponding to the sex listed on their birth certificate.  Auer deference is a potent tool for advocates for transgender rights to use in this litigation, along with others.  If Auer is overruled, however, such deference may no longer be required, weakening the legal position of the federal government in these disputes.  Of course, the Supreme Court decided not to take up the issue … at least not yet.  But the clock may be ticking.