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Supreme Court Punts On PPACA Birth Control Mandate

Birth Control Mandate

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:

Zubik v. Burwell Opinion by Doug Mataconis

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. KM says:

    How freaking ridiculous. A piece of paper.

    They’re not going to get a better compromise then that because there needs to be some legal record of their acceptance of the compromise and it will amount to the same “moral” outcome they are protesting. Short of declaring employees of a religious company automatically fall under the religious dogma of the owner and thus do not have the same rights as workers elsewhere (or citizens for that matter), the litigants are going to have to make some sort of yes/no somewhere in the process. As that’s the foundational nature of the “moral” objection, they cannot budge.

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  2. C. Clavin says:

    It’s going to be hard to fabricate religious freedoms without Scalia around.

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  3. gVOR08 says:

    The document required sounds very much like a statement of faith. Why is that so hard?

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  4. JKB says:

    @C. Clavin: It’s going to be hard to fabricate religious freedoms without Scalia around.

    You say that in a nation that supposedly has freedom of religion?

    Nice to see you Progressives value enumerated rights.

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  5. C. Clavin says:

    @JKB:
    There is a big difference between Freedom of Religion found in the Constitution, and the fabricated freedom of religion found in Hobby Lobby and other decisions.
    Hint; freedom of religion does not mean the freedom to impose your superstitions upon others.

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  6. Jenos Idanian says:

    @JKB: The old sell: “Why do you care? It won’t affect you, anyway.”

    The new reality: “You will be MADE to care.”

    Or, if you like, “it won’t affect you in the least, and boy will you deserve it.”

    (Neither are my originals, but they say it so well)

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  7. James Pearce says:

    @JKB:

    You say that in a nation that supposedly has freedom of religion?

    Before you get offended, consider this:

    Almost universally, Americans -left, right, ambiguous- value not only enumerated rights but also freedom of religion. There’s just some very different ideas about what that means. Some of us believe it means you can practice your religion without being forcibly converted to a doctrine you don’t hold, and others believe it means you can say to your employees, “I own this company, so you’re all Catholics now.”

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  8. Slugger says:

    I don’t understand the moral problem for religious organizations. To get workers, they provide benefits. The employees use the benefits to acquire stuff; some of the stuff they buy are contraceptives. What moral difference does it make whether the employees use their salary benefit or their insurance benefit?

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  9. stonetools says:

    The endgame here is that this ends up before SCOTUS again next year-but it will be a new, improved SCOTUS with a Clinton appointee providing the fifth vote . Guess how the issue is going to finally be resolved?
    What’s happened is the religious freedom guys pushed this case to the Supreme Court, looking for total victory on the religious freedom issue. They would have got it too-but for Scalia’s death. Oops!

    The conservative Justices now desperately want to get the issue away from the Supreme Court, because they know that they are never going to convince the liberals that filling out a form is a burden on religious freedom. This spurious argument is not going to fly with a fifth liberal, either.
    The defendants in this case have every reason to dig in their heels and wait to see if Clinton puts that fifth liberal vote on the court. Depending on the liberals feel at the point, they may want to use this case as a vehicle for revisiting Hobby Lobby.It would serve the plaintiffs right if that happened, and Hobby Lobby got reversed as a result of the conservatives’ overreach here.

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  10. Jenos Idanian says:

    @JKB: I think I’ve finally gotten a handle on the Progressive interpretation of “freedom of religion.” To them, it means you can believe whatever you want. But you can’t act in accordance with those beliefs if they don’t approve of those actions.

    That sound about right to you?

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  11. An Interested Party says:

    To them, it means you can believe whatever you want. But you can’t act in accordance with those beliefs if they don’t approve of those actions.

    Wrong again (but what else is new)…anyone is perfectly free to act in accordance with their religious beliefs…but they cannot force those beliefs on others…

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  12. Raoul says:

    What’s so difficult of checking a form that read: “__Providing birth control violates the tenets of my religion”? Otherwise, how would employees, insurers and the government know who to cover?

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  13. James Pearce says:

    @Jenos Idanian:

    To them, it means you can believe whatever you want. But you can’t act in accordance with those beliefs if they don’t approve of those actions.

    To “them?” You believe that too, unless you’re okay with arranged child marriage, jihad, and honor killing.

    I have no problem saying, “You can believe what you want, but you can’t do that.” And you don’t either.

    So maybe instead of your usual hypocrite hunting (found one!) perhaps you can try and grapple with the actual complexities of the issue. That’s what they’re doing in court.

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  14. C. Clavin says:

    You all gotta understand…Jenos and JKB are victims.
    Their white male privilege is being eroded and it makes them angry and bitter and emotional.
    Of course what they type is illogical. It’s the resentment talking. Something they did zero to earn is being taken away by the modern world and they cannot deal with it rationally.

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  15. KM says:

    @James Pearce:

    To “them?” You believe that too, unless you’re okay with arranged child marriage, jihad, and honor killing.

    I have no problem saying, “You can believe what you want, but you can’t do that.” And you don’t either.

    To paraphrase the wacko right, I’ve got something un-PC to say: Not all religious beliefs are equal in the eyes of the law, nor should they be. Look at how we deal with the less-popular religions and cults; don’t hear a lot of public support for animal sacrifice and ritual orgies. The standard should not be sincerity of belief but rather if the deleterious effects it has on others outweigh its value. For instance, you may sincerely believe in faith healing only but your children better be getting proper medical care if truly ill. Your personal belief does not outweigh their safety. The burden of proof should be on the believer; explain why you should get to legally do X when it actively hurts Y with the concrete understanding you don’t get to do whatever you want and claim God as a get out jail free card.

    Insipid overreach like this is what’s going to ultimately kill freedom of religion. There’s only so many times you can test people’s patience with obvious bullshit before they decide enough is enough. We are seeing this with the pushback on the bathroom bills; too far, too fast and not a leg to stand on makes for poor policy. There’s nobody to blame but the fundies pushing this when the decision comes down against them and they end up further behind the 8 ball then ever before.

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  16. sam says:

    @Jenos Idanian:

    Let me ask you a question. Do you believe that sincerely-held religious beliefs exempt one from following laws of general applicability? And if you don’t believe that, can you tell us where you would draw the line?

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  17. al-Ameda says:

    The issues surrounding this case constitute the best argument to be made for a single payer health insurance system.

    The First Amendment says that the government shall not establish a religion, not that employers (‘Hobby Lobby’ says that a company is now a person) can force employees to accept the religious precepts and beliefs of the company/person.

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  18. C. Clavin says:

    @al-Ameda:

    not that employers can force employees to accept the religious precepts and beliefs of the company/person

    But that is indeed what JKB and Jenos are advocating.

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  19. James Pearce says:

    @KM: Good overall comment, but one caveat:

    The standard should not be sincerity of belief but rather if the deleterious effects it has on others outweigh its value.

    Sure, but if you want to strip out all subjectivity, because after all “deleterious effects” and “value” are subjective.

    After all, who cares if an orthodox Jew keeps their hotplate on all day Saturday? In the abstract, I don’t care. But if I lived in their apartment building, I might….

    So do we say orthodox Jews can’t use a hotplate on the Sabbath? I’m not sure I’m willing to go there, even if the hot plates are fire hazards. I’m not comfortable telling a Sikh he can’t wear his Dastar or a Hindu she can’t have a Bindi. These kinds of things can, and should be, accomodated.

    But if a Sihk tells me I need to wear a Dastar or the Hindu wants to give me a Bindi, I know exactly what to say. Not only NO, but HELL NO.

    And that’s what is key to me about this contraception business. These companies want to impose their beliefs on their employees (read: their subservients) and to justify it, they’re appealing not to theology, but their own earthly powers.

    We’ve seen that before. It’s not religious freedom. It’s religious conquest.

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  20. steve s says:

    If you’re a conscientious objector you fill out some paperwork to say that, and the government works around your beliefs. Somebody tell these precious little snowflake sisters to fill the stupid form out and go back to pretending to be christians concerned about important things.

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  21. Rafer Janders says:

    @KM:

    Look at how we deal with the less-popular religions and cults; don’t hear a lot of public support for animal sacrifice and ritual orgies.

    Which is why my own case is currently wending its way up to the Supreme Court….

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  22. Rafer Janders says:

    @James Pearce:

    I’m not comfortable telling a Sikh he can’t wear his Dastar or a Hindu she can’t have a Bindi. These kinds of things can, and should be, accomodated.

    We do, however, tell Sikh men that they can’t wear a kirpan (a ceremonial curved sword) most places, even though to do so is one of their five articles of faith.

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  23. James Pearce says:

    @Rafer Janders:

    We do, however, tell Sikh men that they can’t wear a kirpan (a ceremonial curved sword) most places, even though to do so is one of their five articles of faith.

    I’m alright with that. It’s counter-intuitive, but I actually think constraint is a necessary ingredient for religious freedom.

    Perfect example: “Congress shall make no law respecting an establishment of religion.”

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  24. DrDaveT says:

    @Jenos Idanian:

    I think I’ve finally gotten a handle on the Progressive interpretation of “freedom of religion.” To them, it means you can believe whatever you want. But you can’t act in accordance with those beliefs if they don’t approve of those actions.

    So close, and yet so wrong. Again.

    It’s actually 3 pieces:
    1. You can believe whatever you want.
    2. The law will be established without regard to religious arguments.
    3. You can act in accordance with your beliefs only to the extent that you don’t break the law.

    Of course, if you’re really devout, you will happily break the law and suffer the consequences without complaint. Or move to a theocracy of your preferred flavor.

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  25. KM says:

    @James Pearce:

    Sure, but if you want to strip out all subjectivity, because after all “deleterious effects” and “value” are subjective.

    After all, who cares if an orthodox Jew keeps their hotplate on all day Saturday? In the abstract, I don’t care. But if I lived in their apartment building, I might….

    Fair enough. God knows the definition of harm for some people is kindly described as ludicrous. Let’s think of it then as a tiered system of no-no’s a la scheduled drugs; the top of the list are no-way-in-hells with no redeeming value to society and as you get further down, more leeway can be given and legitimate cases can be made. A controversial belief like faith healers only would be Sched 2- permissible if the family registers their beliefs so CPS doesn’t pursue or take the kids, the child in question has been evaluated so that they understand they have an option for medical care and do not take it, and regular monitoring by a third party takes place to ensure the child’s safety. Thresholds would be agreed upon ahead of time wherein protocol kicks in and the child receives standard medical attention in case of emergency. The child retains the right to sue their parents for damages or jail time should they reach adulthood with avoidable medical issues.

    There are ways to make room in a secular society for beliefs, even really odd ones. It just requires some level of compromise on both sides…. and lately the religious side has been all gung-ho on their way or the highway.

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  26. beelzebob says:

    @Jenos Idanian: so, the government should not step in with an age of consent for female genital mutilation?

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  27. humanoid.panda says:

    @Slugger:

    I don’t understand the moral problem for religious organizations. To get workers, they provide benefits. The employees use the benefits to acquire stuff; some of the stuff they buy are contraceptives. What moral difference does it make whether the employees use their salary benefit or their insurance benefit?

    The end goal is real simple: to return to Lochner-era understanding of employment as a private contract the government has no say over. The religious Right gets employers the right to properly police their womanfolk. The people bankrolling it get minimum wages and unions and onerous regulations on job creators destroyed. Win-win!

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  28. humanoid.panda says:

    @DrDaveT: That, I think is taking it too far. I think that the original RFRA (the government should exercise extreme restraint when telling people what they can and can’t do to themselves) is a perfectly valid law. The current redefinition of the RFRA to mean “do whatever I want to do to people in my power” is where the red line should be drawn.

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  29. Steve V says:

    @humanoid.panda: Eh, I liked Scalia’s Smith formulaton.

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  30. DrDaveT says:

    @humanoid.panda:

    That, I think is taking it too far.

    Interesting! I was trying to be minimalist. Where would you suggest that one of those points is too restrictive?

    I think that the original RFRA (the government should exercise extreme restraint when telling people what they can and can’t do to themselves) is a perfectly valid law.

    Where do you think that contradicts one of my three rules? It’s perfectly possible to arrive at such a law without recourse to religious reasons.

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