There’s a lot to wade through in the Obama administration’s supplemental brief in the Little Sisters cases,* but it doesn’t take much wading to discover that the Obama administration is trying to evade the Supreme Court’s question (in its order for supplemental briefing) by misconceiving that question.
The Court asks the parties to “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.” (Emphasis added.) To illustrate what it means, the Court offers an example arrangement under which (among other things) petitioners “would not be required to submit any separate notice to their insurer, to the Federal Government, or to their employees” and the contraceptive coverage “is not provided through petitioners’ health plan.”
The Obama administration spends the first section of its brief (part A) fighting the Court’s question (while pretending not to). The Obama administration claims that the accommodation “already has each of those features” the Court identifies. But that claim rests on at least two tricks of wordplay.
First, the Obama administration contends that the accommodation “extinguishes an objecting employer’s obligation to provide contraceptive coverage.” But that claim (if it is ever really true at all) is true only after the objecting employer has provided the “separate notice” that the Court’s example aims to exclude. In other words, the Obama administration is defying the Court’s question by maintaining that a system in which the objecting employer must provide a “separate notice”—a notice that, as petitioners explain, operates as a trigger and thus implicates their moral complicity—is the same as one in which the employer does not have “any involvement … beyond [its] own decision to provide health insurance without contraceptive coverage to [its] employees.”
Second, the Obama administration contends that under the accommodation “contraceptive coverage is not provided through the employer’s health plan.” But the Court’s question soundly rests on an understanding that that contention is false—and that, as petitioners argue, the accommodation effectuates a hijacking of the objecting employer’s health plan infrastructure.
* As I was finishing up this post, a reader called to my attention Michael McConnell’s excellent Volokh Conspiracy piece on the supplemental briefs.