In a surprise move Monday, the Supreme Court punted on a major Obamacare case challenging the law’s contraceptive mandate, and specifically, how it accommodates religious nonprofits that object to birth control. The Supreme Court sent the case back to lower courts to examine an alternative accommodation to the mandate that the court had been briefed on by both parties in the case after the oral arguments.
The move — which comes as the Supreme Court is down a justice with Justice Antonin Scalia’s death — allowed the court to avoid what looked like a split decision after March’s oral arguments. The Supreme Court was able to stay away from the thorny trade-offs between health care policy and religious freedom, a legal landscape that got much more complicated after the Supreme Court’s ruling in 2014’s Hobby Lobby case.
The challenge the court weighed in on Monday was Zubik v. Burwell. It was consolidation of cases brought by religious nonprofits, including The Little Sister’s of the Poor, who objected to the work-around set up by the Obama administration to provide contraceptive coverage to employees of organizations opposed to birth control on religious grounds. The non-profits said that even filling out the form or sending a government the letter declaring their objections to covering birth control was a burden on their faith, because it set in motion the process by which their employees received the coverage from their insurers, though that coverage was not paid for or part of the employer plans. Lower courts’ have overwhelmingly rejected the challengers’ argument that the workaround violated 1993’s Religious Freedom Restoration Act (RFRA), though one appeals court ruled in their favor. (That case was not among those consolidated for the Supreme Court).
In sending the case back down to lower courts, the Supreme Court signaled that it believed a compromise could be worked out that didn’t involve weighing the larger issues involved in the RFRA challenge.
“The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,” Monday’s opinion said. The opinion also stipulated that whatever was worked out should not affect “the ability of the Government to ensure that women covered by petitioners’ health plans” have access to contraceptive coverage.
RFRA was at the heart of the Supreme Court’s decision in 2014’s Hobby Lobby case — which said that certain for-profit companies that object to birth control could use the nonprofit workaround that was on trial in Zubik.
At oral arguments in March, the Supreme Court struggled with other ways women could receive the coverage, and in a surprise move a week later, asked for more briefing on alternatives that hinted at a possible compromise.
The move Monday to send it back to lower courts might come as a disappointment to the religious groups who challenged the mandate. Specifically the Supreme Court concluded that both the religious groups and the government had conceded to the court there were ways to sidestep the mandate that didn’t undermine the legal positions they had originally taken. The groups took great pains to avoid making that concession to the court both during and after oral arguments, but the court was not convinced.
The court said the positions of the religious groups and the government had undergone “substantial clarification and refinement.”
The religious groups challenging the mandate nonetheless described Monday’s opinion as a win for them, as it said that the government could not impose the fines required by the mandate since a compromise would be worked out.
“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters. The Court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead Becket attorney for the Little Sisters of the Poor, in a statement. “It is crucial that the Justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious—the Little Sisters respectfully object. There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”
Monday’s opinion was also accompanied by a concurring opinion by Justice Sonia Sotomayor and joined by Justice Ruth Bader Ginsburg reiterating that the court was not ruling on the merits on the case. The concurrence also shot down the idea put forward by the religious groups at oral arguments — and entertained by the conservative male justices, to the annoyance of the women on the bench — that the female employees of the objecting non-profits could somehow buy a standalone contraceptive-only plan, on the Obamacare exchanges or otherwise. As the female justices pointed out during the hearing and in Monday’s concurrence, such an option is not workable from a legal or policy sense, and it would undercut the very goals of the Obamacare contraceptive mandate.
“Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation,” the concurrence said. “Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. 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.'”
Read the full opinion below: