Saturday, July 30, 2016

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!