Justices, Seeking Compromise, Return Contraception Case to Lower Courts

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, instructing lower courts to explore whether a compromise was possible.

The ruling was the latest indication that the eight-member Supreme Court is exploring every avenue to avoid 4-to-4 deadlocks, even if the resulting action avoids deciding the question it had agreed to address.

The case, Zubik v. Burwell, No. 14-1418, was brought by religious groups that object to providing insurance coverage for contraception to their female workers.

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 stressed 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,” she 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 has considered an aspect of President Obama’s health care law, the Affordable Care Act. It built on one 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, 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 sought 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 violates their faith.

The groups added that they should be entitled to the outright exemption offered to houses of worship like churches, temples and mosques. Houses of worship are not subject to the coverage requirement at all and do not have to file any paperwork if they choose not to provide contraception coverage.

At arguments in March, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that are the petitioners in the case.

Days later, the court called for more briefs in an order that asked the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than to buy insurance plans for their workers that do not include contraception coverage.

On Monday, the court said the unusual tactic had worked and that both sides “now confirm that such an option is feasible.”

The religious groups, the court said, quoting their brief, “have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”

“The government,” the court continued, “has confirmed that the challenged procedures for employers with insured plans could be modified to operate in the manner posited in the court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’”

Most federal appeals courts have ruled for the government in challenges to the accommodation.

Among the religious groups challenging the accommodation are an order of nuns based in Baltimore called the Little Sisters of the Poor, which operates nursing homes around the country. The nuns object to playing any role in providing any of the forms of contraception approved for women by the Food and Drug Administration.

Other challengers only object to covering intrauterine devices and so-called morning-after pills, saying they are akin to abortion. Many scientists disagree.

The religious groups sued under the Religious Freedom Restoration Act of 1993, which says that government requirements placing a substantial burden on religious practices are subject to an exceptionally demanding form of judicial scrutiny.

The two sides differed about whether the accommodation was such a burden. The religious groups said that adhering to their faith would subject them to crushing fines in the tens of millions of dollars.

“The government wants petitioners to do precisely what their sincere religious beliefs forbid — and it is threatening them with draconian penalties unless they do so,” Paul D. Clement, a lawyer for several religious groups, told the justices in a brief.

Solicitor General Donald B. Verrilli Jr., in a brief for the Obama administration, said, “We do not question the sincerity or importance of petitioners’ religious beliefs.” But, he added, “a sincere objection to opting out of a legal requirement based on the knowledge that the government will then arrange for others to fulfill the requirement does not establish a substantial burden.”

 

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