Supreme Court order sends contraception case back to lower courts in search of compromise

by Brian Roewe

NCR environment correspondent

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Withholding on a ruling of its own, the U.S. Supreme Court on Monday returned the Zubik v. Burwell contraception case to the lower courts, indicating a compromise on the contentious issue could emerge outside intervention by the nation’s highest court.

In a nine-page unsigned order read by Chief Justice John Roberts, a unanimous Supreme Court vacated the seven judgments consolidated into Zubik from four U.S. Courts of Appeals circuits and sent the cases back to their respective courts, where they anticipated the parties would receive “sufficient time to resolve any outstanding issues between them.” At the appeals level, all seven of the Zubik-consolidated cases were ruled in favor of the federal government. The 8th Circuit appeals court, with jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled in two separate cases in favor of the religious organizations. 

Following oral arguments in late March, the justices requested supplemental briefings to address whether there was a way to provide the petitioners’ employees contraceptive coverage “without any such notice from petitioners.” The briefs from both sides, the court said Monday, “now confirm that such an option is feasible.”

“Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them,” the Court said.

While the opinion doesn’t block the government from ensuring employees of the petitioning groups can receive contraceptives, the Court said, it also “may not impose taxes or penalties on petitioners for failure to provide the relevant notice” of their objections to such coverage. 

In a statement, Cardinal Donald Wuerl of Washington, D.C., whose archdiocese is among the petitioners, said, “We are pleased that the Court confirms that there is a path forward that recognizes our religious liberty, yet we also recognize that this struggle will continue.”

Pittsburgh, Pa., Bishop David Zubik, the lead petitioner in the case, expressed gratitude to God and the justices “that they have left the stay in place, and that they recognize our willingness to reach a resolution that allows us to abide by our faith and the government to achieve its goals.

“We have already stated our willingness to come to such an agreement and we hope that the government shares that willingness,” he said in a statement.

The justices, in sending the cases back to the appeals level, avoided a ruling from the high court on the case and the First Amendment and religious liberty questions raised by the religious groups opposing the federal government’s mandate for employers to provide contraceptive services.

Since its January 2012 introduction and numerous subsequent revisions, the contraception mandate, part of the 2010 Affordable Care Act, has drawn sharp scrutiny from religious organizations and institutes that oppose birth control on faith grounds. The mandate requires employers to provide preventative medical services for women, including contraceptives, to employees. Religious groups have objected to that, and have argued that even notifying the government of their objections through a form -- one proposed solution which would then trigger the insurance company to provide direct coverage -- would still make them complicit in sin.

In its brief, filed April 12, the religious nonprofits said they would end their objections if an alternative plan offering contraception was “truly independent” of them and their health insurance plans. 

“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 Supreme Court justices wrote in their opinion Monday.

At eight justices since the February death of Antonin Scalia, the Supreme Court was expected to issue a ruling on the case in June. The decision to send the case back to the lower courts, like the request for additional briefs, indicates that the Court couldn’t muster a majority vote for either the government's or religious organizations’ position, and that it is telling the sides to find a way to make it work.

More: “Solution on contraceptive mandate still distant” (May 5, 2016)

The Supreme Court made clear that in issuing the opinion it was not expressing a view on Zubik’s merits.

 “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,” it said.

“Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the Government to ensure that women covered by petitioners’ health plans ‘obtain, without cost, the full range of FDA approved contraceptives,’” the court added.

In an adjoining concurrence, Justice Sonia Sotomayor, along with Justice Ruth Bader Ginsburg, said she affirmed the Court’s opinion in no small part “because it expresses no view on ‘the merits of the cases.’” She urged the lower courts not to read into Monday’s opinion or earlier Court orders for signals of where it stands.

While the opinion allows the lower courts to consider if existing or modified government regulations could allow for contraceptive coverage to employees without their employers’ notice, Sotomayor said it “does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a “separate policy, with a separate enrollment process.”

Such policies do not exist or present numerous legal and practical obstacles, she said, while adding that standalone contraceptive-only coverage “would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act,” and present a barrier the law sought to eliminate.

Even absent a Supreme Court ruling on the merits, the Becket Fund for Religious Liberty, which represents the Little Sisters of the Poor in the case, touted the opinion in a press release as a win.

“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor, in a statement.

David Cortman, senior counsel for Alliance Defending Freedom, applauded the Supreme Court in protecting Christian colleges and other religious groups from paying fines or filling out forms for their objections.

“The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions,” he said in a statement.

Jon O’Brien, president of Catholics for Choice, lamented in a statement that the Court “punted the decision to lower courts,” and laid blame for the current impasse with the Obama administration.

“Their lack of conviction and refusal to stand up for the rights of individuals in an effort to appease faith-based big business caused this calamity in the first place,” he said.

The cases consolidated under Zubik v. Burwell are Priests for Life v. Department of Health and Human ServicesRoman Catholic Archbishop of Washington v. BurwellEast Texas Baptist University v. Burwell; Southern Nazarene University v. BurwellGeneva College v. Burwell; and The Little Sisters of the Poor v. Burwell.

[Brian Roewe is an NCR staff writer. His email address is Follow him on Twitter: @BrianRoewe.]

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