This piece originally was posted on the Federalist Society blog on April 15, 2016.
Last Monday, the parties in the challenges to the HHS contraceptive mandate (collectively called Zubik et al. v. Burwell) filed supplemental briefs in response to the U.S. Supreme Court's unusual post-argument order. Issued shortly after oral argument revealed the Justices to be sharply divided on how to resolve the cases, the Court issued an order asking the parties to address whether there could be an arrangement under which employees of the religious plaintiffs could obtain contraceptive coverage, “but in a way that does not require any involvement of [the religious plaintiffs] beyond their own decision to provide health insurance without contraceptive coverage to their employees.” The supplemental brief of the religious plaintiffs is here, and the supplemental brief of the United States is here. Readers may want to consider excellent commentary on those briefs from Michael McConnell at the Volokh Conspiracy, and from Ed Whelan and Yuval Levin at National Review Online. I filed an amicus brief on behalf of another religious plaintiff, the Eternal Word Television Network, which addresses many of the same arguments concerning the validity of the so-called “accommodation” for religious non-profit organizations. The parties will file replies to the supplemental briefs by April 20, 2016.