Supreme Court opts against resolving Obamacare birth-control challenge

Supporters of contraception rally before Zubik v. Burwell, an appeal brought by Christian groups demanding full exemption from the requirement to provide insurance covering contraception under the Affordable Care Act, is heard by the U.S. Supreme Court in Washington, U.S., March 23, 2016. © Reuters
The US Supreme Court refused to take up the contraception mandate challenge to the Affordable Care Act, brought by religiously-affiliated nonprofits who argued it violated their rights. The case was sent back to the lower courts for resolution.

One justice short of a full bench following the death of conservative justice Antonin Scalia in February, the eight-member Supreme Court opted unanimously against offering a resolution in the case of Zubik v. Burwell,sending it back to the appellate courts in order for the two sides to reach a compromise.

In the order, the court said it "expresses no view on the merits of the cases" brought about by religious groups such as hospitals and universities. The plaintiffs challenged not only the Affordable Care Act's requirement for contraception coverage in employer health plans, but also an "accommodation" later made by the Obama administration in which the nonprofits could opt out of paying for the birth-control coverage, via written notice, in order to allow the federal government and insurance companies to directly provide it.

In seven combined lawsuits, the groups – including the Little Sisters of the Poor, a Catholic charity in Washington – cited the Religious Freedom Restoration Act to assert that the accommodation still violated their religious beliefs by involving them in access to birth-control coverage.

The high court said Monday a compromise in the case must come from a lower court.

"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 justices wrote.

Contraception coverage must remain intact while litigation moves forward, the court 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 wrote.

Yet the justices added that the Obama administration must not advance penalties for institutions who object to the accommodation process.

The plaintiffs in the case said the Supreme Court's action represented a temporary victory for religious freedom.

"It is crucial that the Justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious—the Little Sisters respectfully object," said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents Little Sisters of the Poor. "There is still work to be done, but today’s decision indicates that we will ultimately prevail in court."  

Defenders of contraception coverage in the Affordable Care Act, also known as Obamacare, said the law's provision of full coverage for birth control should apply to all employee insurance plans.

“We are disappointed that the Court chose not to issue an opinion today conclusively resolving this dispute and ensuring that women receive health insurance coverage that includes contraceptive care without further delay,” said Louise Melling, deputy legal director for the American Civil Liberties Union.

“We are, however, optimistic that the courts below will rule in favor of women’s access to the care they’re entitled to under federal law and that the highest court will resolve this matter once and for all on the right side of the law and history. Religious freedom does not include the right to discriminate against women.”

In a separate opinion, Justice Sonia Sotomayor warned the plaintiffs and lower courts that the Supreme Court's Monday order in the case does not mean that the high court would accept the plaintiffs’ argument in potential future arguments. She was joined by Justice Ruth Bader Ginsburg.

"Today’s opinion does only what it says it does: 'afford[s] 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," Sotomayor wrote.

The female justices added that the court's opinion does not "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.'"

The case may come back to the Supreme Court if lower courts are divided in future proceedings or if one of the parties files an appeal. Meanwhile, the Supreme Court looks to be one justice short for the foreseeable future, as Republicans in Congress have rejected any possibility of considering Merrick Garland, President Obama's nominee for the bench.