How SCOTUS Got To Keep Its Head In The Sand On Obamacare And Contraceptives

If there is one clear message that could be derived from a unanimous but unsigned Supreme Court opinion on a major contraceptive case, it is this: Everyone is just going to need to get along and keep the Supreme Court out of it.

The short, three-page opinion in the closely watched case of Zubik v. Burwell was riddled with ambiguity, uncertainty and even contradiction. The Supreme Court’s non-decision to punt the issue reflects not just its intractability, exacerbated by the vacancy left by Justice Antonin Scalia’s death, but also hints of trouble to come when the case goes back down to lower courts.

The challengers in Zubik are religious non-profits who object to the accommodation in Obamacare’s contraceptive mandate granted to organizations that do not want to cover birth control for their employees. The regime being contested required them to notify either their insurer or the feds of their opposition to birth control, and from there let the government see to it that women employees received coverage separate from the non-profits’ health plans but through their insurers nonetheless.

Instead of ruling on the merits, the Supreme Court essentially kicked the case back down to the various appeals courts for the parties to hash out a compromise, a compromise that looks no clearer now than it did at April’s oral arguments.

“This is a very short order that raises many questions. Not many pages and many questions coming from it, for sure,” said Louise Melling, deputy legal director for American Civil Liberties Union, on a press call with reporters Monday.

Such a move is rare for the Supreme Court, particularly on a case as big as this one. But the case had already taken some unexpected twists. The week after oral arguments, the court asked for supplemental briefing on other alternatives, including one outlined by the court. While both sides said, yes, they would consider a compromise, it was clear from their responses that they were nowhere near on the same page about what that compromise should look like. Monday’s opinion offered little additional guidance.

Those supporting the government were cheered by a line that said the compromise should offer the female employees “full and equal health coverage, including contraceptive coverage.”

However, at oral arguments there was clear disagreement among the justices about what that means.

The conservative male justices suggested women could receive the coverage from contraceptive-only plans — plans which don’t currently exist and which the government, health policy wonks and even some of the women justices on the bench all decried as not feasible. Some of the court’s conservatives also scoffed at the idea the the coverage needed to be “seamless.” In their post-hearing supplemental briefing, the challengers said they would only settle for a compromise where women would have to engage in a separate contract with their insurer, or receive coverage from some outside plan or government-funded program.

Justice Sonia Sotomayor, in a concurring opinion Monday joined by Justice Ruth Bader Ginsburg, said that any compromise that amounted to a contraceptive-only plan would leave women “in limbo.”

“And requiring that women affirmatively opt into such coverage would ‘impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate,” she wrote.

Which raises the million dollar question: Will the parties be able to come to an agreement in the lower courts, or will this case inevitably be back at the Supreme Court, perhaps when its current vacancy is filled and there is a decisive ninth vote?

“The governments and the employers have already made their positions pretty clear in the supplemental briefing,” said Gretchen Borchelt — the vice president for reproductive rights and health at National Women’s Law Center — also on Monday’s press call. “I don’t know how willing to compromise the employers are besides what they already put out as their solution.”

Those supporting the challengers say it’s the government that’s being stubborn, and that the flashpoint for them is that the government is using the infrastructure of the insurers who contract with the employers to provide the coverage.

“Is it hypothetically possible that the government will continue to refuse take ‘yes’ for an answer, even though many, many options are available to it and will continue to fight this even though it is easy to accommodate the Little Sisters?” said Stephanie Barclay, legal counsel for the Becket Fund, which represented Little Sisters of the Poor in one of the consolidated cases.

“Hypothetically it’s possible. We think that given the strong signal from Supreme Court … the government needs to come up with a way that actually protects the Little Sisters,” Barclay told TPM.

She said that the contraceptive-only plan was just one of many ideas the non-profits had offered and pointed out that only two justices had been on the concurring opinion shooting them down.

“Certainly there have been interesting statements from the government about the fact that they try to claim that these plans don’t exist, but the problem is the federal government itself offers contraceptive-only plans,” Barclay said, referring to plans offered through Medicaid. “When these cases are sent back to the court of appeals, and the courts really look at the facts on the ground, that’s going to be a tough claim for the government to keep making.”

Both sides had reason to view Monday’s opinion as a win, at least in the short term. For the non-profits, all the previous decisions against them (eight of the nine appeals court decisions in total) were wiped clean in favor of a potential compromise. For the government, it was likely a better scenario than what would have been if Scalia were still on the bench and the conservatives had five votes to strike down the current accommodation definitively.

But there was one other thing the government asked for and didn’t get, which was a clear-cut ruling that would settle the issue once and for all.

“A decision that held the present accommodation inadequate in some respect without fully resolving the RFRA challenges petitioners have presented would thus inevitably lead to uncertainty and continued litigation in the lower courts,” the federal government said in its briefing on a compromise last month.

The last thing the Supreme Court wanted to do Monday was be definitive. Uncertainty and continued litigation is exactly what the government — and women — got.