Supreme Court Prescription to Settle Contraceptive Mandate Cases Remains Unfilled: Prognosis Uncertain

Government’s Latest Move Shifts Case from the Extraordinary to the Extrajudicial 

In my post of June 14 I was highly critical of the Supreme Court’s extraordinary decision in Zubik v. Burwell. Little did I know that the process would go from bad to worse. In an abdication of judicial responsibility, the parties were directed to settle their dispute about whether the Affordable Care Act’s (ACA) contraceptive mandate violates the freedom of religion of faith-based groups. The Court vacated the rulings of the courts of appeals and instructed these courts to “allow the parties sufficient time to resolve any outstanding issues between them.” Recently the defendants -- in the middle of the settlement discussions -- issued a formal Request for Information (RFI) via the Federal Register to solicit ideas on resolving this matter from anyone who has any ideas that might be helpful -- including the plaintiffs in these very cases. The cases originally were brought in federal court because plaintiffs believed that government agencies were violating their rights under the Religious Freedom Restoration Act, and now these agencies are asking for public comments from interested parties, including the plaintiffs, about how to resolve the dispute!


The RFI was published on July 22. According to a status report submitted to the D.C. Circuit by plaintiffs in that circuit's case on July 25, the government’s decision to pursue public comment was a complete surprise to them. Here is an excerpt from the letter, a copy of which can be accessed here:

Consistent with the Supreme Court’s directive, the parties had an initial meeting on June 20 at the Department of Justice in Washington, DC, to begin negotiations. While Plaintiffs-Appellants were waiting for a second meeting to be scheduled, the Government informed them on July 20 that it would be issuing a Request for Information (RFI) the next day to solicit public comment on alternative regulations. The Government then issued the RFI on July 21, providing a 60-day comment period. The Government also informed Plaintiffs-Appellants that it would shortly be filing status reports in the courts of appeals. Plaintiffs-Appellants have written to the Government . . . reiterating our desire to engage in substantive discussions to arrive at a mutually agreeable solution that will “accommodate[] petitioners’ religious exercise,” as contemplated in the Zubik order. In the meantime, Plaintiffs-Appellants will submit comments in response to the RFI and will continue our attempts to engage constructively with the Government.

The government's status report to the D.C. Circuit is located here.

We have now moved from settling a lawsuit to possible regulatory changes, which is not at all what the Supreme Court ordered. RFIs are often used when federal agencies want to determine the need to engage in formal rulemaking, and it is an extrajudicial, administrative undertaking. For reasons known only to them, the defendants are now trying to engraft the administrative process onto the settlement process. The Court stated that the settlement process was to be supervised by the courts of appeals; frankly, this unilateral RFI arguably violates the Supreme Court's ruling.

There is more of a lesson here than even I thought originally. When you stop calling balls and strikes, you end up with what we have now: a mechanism for the government to create an extrajudicial process by which it will attempt to address its own alleged unlawful conduct, no doubt by bogging plaintiffs down in a bureaucratic, administrative process. Are they doing this to delay so that the matter is not resolved until the next President takes office? Perhaps. I also would not be surprised if at some point the government tries to make all of these cases moot by issuing new regulations and requiring plaintiffs to start litigation anew. The plaintiffs and the courts will need to be on guard against such tactics. 

I cannot imagine that this unfolding bureaucratic process was envisioned by the Court when it stated in its May decision that “[t]he judgments of the Courts of Appeals are vacated, and the cases are remanded for further proceedings consistent with this opinion.” The Supreme Court cited three cases in support of its extraordinary action. Each of those cases, however, involved a lower appellate court being instructed to address issues on remand. Those were instructions to the courts, not the very federal agencies sued for violating religious freedom.

"It is emphatically the province and duty of the judicial department to say what the law is." Chief Justice Marshall's classic admonition in Marbury v. Madison is good advice, and these very words are carved in marble on a wall at the Supreme Court, as shown in the picture above. The current state of play is what happens when the Supreme Court decides to avoid tie votes, seeks to preserve a flawed law at all costs, and disavows its duty to decide cases that come before it.

The irony of this extrajudicial maneuver is inescapable and worthy of a Kafka or Dickens novel. Maybe both.

To be continued, no doubt . . .