Story updated at 2:19 p.m. ET)
The U.S. Supreme Court decided Monday (PDF) to punt cases back to lower courts over how religious not-for-profits must respond to the Affordable Care Act's requirement that employers offer employees birth control coverage.
The high court now wants the lower courts to help reach compromise decisions. The not-for-profits called the decision Monday a “win,” while those supporting the government decried that description.
A number of religious not-for-profits argued in the challenge, Zubik v. Burwell, that they should not have to play any part in providing birth control to employees. Under a current Obama administration workaround, religious not-for-profits may opt out of the ACA's contraception mandate by notifying their third-party administrators or providing information to HHS so the government can arrange for other coverage for employees.
But the groups have said that providing such notifications and/or information makes them complicit in helping their employees get contraception, which violates their religious beliefs.
The high court's decision Monday to send the cases back to the originating U.S. Circuit Court of Appeals follows briefs filed by both the government (PDF) and the not-for-profits (PDF) late in the case suggesting a compromise. The government and the not-for-profits agreed last month that a new method could allow not-for-profits' employees to get contraception coverage without involving their employers, though the two sides didn't agree on all the specifics.
“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 the petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage,' ” the Supreme Court wrote.
Many speculated before Monday that based on the tenor of oral arguments in the case, the justices were potentially headed for a 4-4 split opinion. Such an opinion would have left the lower court rulings in place, most of which have sided with the government. Instead, the Supreme Court vacated the lower courts' opinions in the case and ordered them to revisit the issue.
Notably, the court also said that the government may not fine or penalize the groups that brought the lawsuits for failing to officially notify the government that they're opting out of the mandate. Rather, the court said, the litigation serves as adequate notice of that opt-out.
The Becket Fund for Religious Liberty, which is representing one of the not-for-profits, Little Sisters of the Poor, cheered the decision Monday and its bar against fining the groups involved in the cases.
“This decision is a win for religious liberty,” said Mark Rienzi, Becket Fund senior counsel, in a call with reporters. “It is also confirmation of what we've been saying all along: The government simply does not need religious institutions and their health plans to give out contraception.”
Rienzi said he doesn't think the lower courts will come to the same conclusions they reached the first time. He noted that the government first said opt-out notifications from not-for-profits were necessary to ensure coverage and then changed its tune.
Those on the other side of the case, however, emphasize that the decision allows the government to facilitate contraception coverage for the groups' employees going forward.
The White House did not immediately respond to a request for comment Monday.
“While we're disappointed the court did not resolve this question once and for all … we're confident in the final outcome here,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center, in a call with reporters. The National Women's Law Center filed a brief (PDF) in the case siding with the government.
Louise Melling, American Civil Liberties Union deputy legal director, said during the call that much about the court's order gives her hope. The court, she said, seemed adamant that women receive comprehensive healthcare coverage. The court also did not rule on the merits of the case. The American Civil Liberties Union also filed a brief (PDF) in the case supporting the government.
In a concurring opinion, Justices Ruth Bader Ginsburg and Sonia Sotomayor repeatedly mentioned the need for lower courts to find a compromise through which women could get “seamless preventive-care coverage under the Affordable Care Act.” They note in that concurring opinion that requiring female employees to opt-in to coverage would present too much of a barrier to access as would requiring stand-alone contraceptive-only coverage—a type of coverage that does not now exist.
“This is a case about religious liberty and equality,” Melling said. “Religious liberty doesn't mean the right to discriminate, and at the end of the day, that's what's at stake here.”
It's possible some of the cases might return to the Supreme Court if the lower courts can't find compromises that make everyone happy.
During an interview with BuzzFeed Monday, President Barack Obama said he suspected the case's outcome might have been different if the court had nine justices.
The ninth seat has been open since conservative Justice Antonin Scalia died in February, and Senate Republican leaders have so far been unwilling to consider President Barack Obama's nominee for the position, Merrick Garland, who is chief justice of the U.S. Court of Appeals for the District of Columbia. Senate Republican leaders say the next president should be able to make the nomination.
