In an outcome largely attributable to the essentially even ideological divide created by the death of Associate Justice Antonin Scalia in February, a unanimous Supreme Court today essentially punted on the latest round of cases dealing with the Affordable Care Act’s contraceptive coverage mandate, sending them back to the trial court for what is likely to be a protracted round of negotiation and litigation that largely guarantees they would not be back before the Court until well after the 2016 elections when, presumably, Justice Scalia’s replacement will have been confirmed:
WASHINGTON — The Supreme Court, in an unsigned unanimous opinion, announced on Monday that it would not rule in a major case on access to contraception, and instructed lower courts to explore whether a compromise was possible.
The case, Zubik v. Burwell, No. 14-1418, was brought by religious groups that object to providing insurance coverage for contraception to their female employees.
Less than a week after the case was argued in March, the court issued an unusual unsigned order asking the parties to submit supplemental briefs on a possible compromise. In Monday’s ruling, the court said those briefs suggested that a compromise was possible, but that it should be forged in the lower courts.
“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’ ” the court said, quoting from a brief filed by the government.
The Supreme Court urged the lower courts to “allow the parties sufficient time to resolve any outstanding issues between them.”
The justices emphasized that they were deciding nothing.
“The court expresses no view on the merits of the cases,” the opinion said. “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.”
Justice Sonia Sotomayor filed a concurrence, which was joined by Justice Ruth Bader Ginsburg, underscoring the limited nature of the court’s action and cautioning lower courts not to read anything into it.
“Today’s opinion does only what it says it does: ‘affords an opportunity’ for the parties and courts of appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice,” Justice Sotomayor wrote. “As enlightened by the parties’ new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”
The case was the court’s second encounter with the contraception requirement and the fourth time it considered an aspect of the Affordable Care Act. It built on a case from 2014, Burwell v. Hobby Lobby Stores, which said a regulation requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority in 2014, said there was a better alternative, one the government had offered to nonprofit groups with religious objections.
That alternative, or accommodation, was at issue in the new case. It allowed nonprofit groups like schools and hospitals that were affiliated with religious organizations not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption.
Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith.
More from Lyle Denniston:
The Court largely shifted to six federal appeals courts the task of ruling on the mandate’s legality — the task that the Court had agreed last November to take on itself in seven of the cases. Five appeals courts had ruled in favor of the mandate, and one had ruled against. All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases.
The Court acted through a per curiam (“by the Court”) opinion — announced in the Courtroom by Chief Justice John G. Roberts, Jr. — dealing with the cases the Court was reviewing, along with threeorders extending the effect of that opinion to six other cases that the Court had not yet agreed to hear. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote separately to stress that the Court had not decided any of the legal questions it considered in the cases, under the lead case’s title,Zubik v. Burwell, and to caution lower courts not to read anything into the new opinion and orders about where the Court stands.
One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.
Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.
The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.
Doing on Monday much the same that it had done in several temporary orders at earlier stages of this controversy, the Court accepted that the non-profits already had given the federal government sufficient notice of their objection to the mandate, and that the government could use that notice as the basis for going ahead to provide actual access, at no cost, to the employees and students of those institutions.
The unsigned opinion that the Chief Justice announced included an attempt to explain why the Court was bypassing a definitive ruling on the legal issues. It cited the replies that both sides had filed, after the cases had been argued, in reaction to a suggested compromise plan devised by the Court.
The Court on Monday interpreted those filings as containing concessions that move the two sides somewhat closer together, but at the least provided a basis for letting the federal appeals courts be the first to analyze the meaning and impact of those concessions. The Court expressed the hope that the two sides would use this new opportunity, in the appeals courts, to work toward common ground that would protect the religious sensibilities of the non-profit institutions at the same time that women of child-bearing age would not be deprived of contraceptive devices and methods.
“We anticipate,” the Court said, “that the courts of appeals will allow the parties sufficient time to resolve any outstanding issues between them.” That appeared to be an invitation for the lower courts at least to explore whether the two sides could reach agreement without prolonging the court battles. It conceded, though, that there may still be “areas of disagreement” between the two sides.
When the Court heard oral argument in these cases in March, it was immediately apparent that the sharp division between the Justices meant that the most likely outcome would be a 4-4 tie that would allow the rulings below to stand without creating a national precedent. In all but one of the pending contraceptive mandate cases, that would have meant that the religious institution(s) involved would have lost and would have been compelled to either comply with the regulation by certifying their objection or face potential fines that could become quite hefty as time went on. To that extent, then, the outcome today constitutes a potential victory for them since the proposal that the Court put before the parties essentially concedes that Plaintiffs’ argument that even filling out a form was a burden on their free exercise of religion and attempts to work around that problem by allowing the employer to negotiate with their insurer for policy coverage that does not include contraceptive coverage while the burden is then placed on the insurance company to deal with the lack of contraceptive coverage by working with the appropriate government agency to ensure that it’s provided. All of this apparently grew out of hypothetical questions posed to the parties during oral argument during which various Justices attempted to probe exactly what the employers would and would not consider an acceptable alternative short of voiding the regulations entirely, which there clearly would not be support for on the Court. What’s unclear is whether or not what would amount to a settlement between the parties along these lines would require the issuance of new regulations by the Department of Health and Human Services or whether it could all be covered by a Court order, presumably from the Supreme Court itself at some point.
There’s no guarantee that all of this will work itself out, of course. It could prove difficult for the parties to come to an agreement acceptable to all of them, unless the parties all end up working together rather than treating these as six separate cases pending before six different courts. It could end up being impossible to effectively draft regulations that would accomplish what the Court is aiming at here. Whatever the outcome here, though, it seems obvious that what the Justices really intended to do here was to send these cases deep enough back into the process to guarantee that, if they do end up returning to the high court, it hopefully won’t be until after the Court is back to its full legally mandated membership of nine Justices. Given the number of other high profile cases that could end up in 4-4 ties still pending on the Court’s docket, it leads one to wonder what other creative resolutions the Justices may come up with this year.
Here’s the Court’s opinion:
