Justices Send ACA Contraception Case Back to Lower Courts

The Supreme Court issued a per curiam opinion Monday that sent Zubik v. Burwell back to several U.S. appeals court.

At issue is whether a provision in the Affordable Care Act that allows religious nonprofits and closely-held for-profit organizations to opt out covering contraception, while insurers make sure that employees can still obtain the coverage, infringes on the employers’ religious beliefs. The case combines several lawsuits, including one sought by the Little Sisters of the Poor.

The high court, still shorthanded after the death of Justice Antonin Scalia in February, remanded the case back to the United States Courts of Appeals for the Third, Fifth, Tenth and D.C. Circuits. The decision will give the parties an opportunity to reach a compromise that “accommodates petitioners’ religious exercise” while ensuring women covered by the petitioner’s health plans receive coverage that includes contraception.

“The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance,” the opinion says. “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 push for compromise comes after the high court asked both parties to submit supplemental briefs after oral arguments. The court notes that both sides have said a compromise is possible.

When asking the parties to file the supplemental briefs, the court floated one possible alternative: The petitioner groups would contract with private insurance companies for plans that did not include contraception coverage. The insurance company would then separately inform employees receiving that coverage that they would provide cost-free contraceptive coverage as a separate plan.

The petitioners, who have argued that they should be afforded the same rights as places of worships that do not have to cover contraception, said in their supplemental brief that such an alternative would be acceptable, so long as the petitioners are not fined for not covering contraception on the plans offered to their employees.

The petitioners say religiously-affiliated employers should not have to take any steps to provide coverage that they say violates their religious beliefs.

The government, for their part, said the proposal put forth by the high court was “very similar to the existing accommodation,” which requires insurers to provide coverage separately. That accommodation was the conclusion of Burwell v. Hobby Lobby, which the court ruled on in 2014.

“The self-certification process was adopted with broad support from commenters because it provides clarity and certainty for all parties whose rights and duties are affected by the accommodation, including the objecting employers,” the government wrote in their supplemental brief. “A requirement that an employer state in writing its religious objection and eligibility for an exemption is a minimally intrusive process, and petitioners have never suggested an alternative arrangement like the one posited in the Court’s order.”

The government has said any compromise should make clear that insurers must cover contraception, or else years of litigation could follow and women could be denied access to contraception.

The Courts of Appeals should afford the groups sufficient time to come to an agreement, the justices direct. They write that this approach is more suitable for the case.

Justice Sonia Sotomayor wrote a concurring opinion, which Justice Ruth Bader Ginsburg joined. Sotomayor wrote that she joined the court’s opinion, as the court does not take any sides and the decision only allows the lower courts to “consider only whether existing or modified regulations could provide seamless contraceptive coverage.”

“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,” she wrote.

The Beckett Fund for Religious Liberty, which brought the lawsuit one behalf of the Little Sisters of the Poor, called the ruling a win for the petitioners.

“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters. The Court has recognized that the government changed its position,” Mark Rienzi, senior counsel at the Becket Fund said in a statement. “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. There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”

White House Press Secretary Josh Earnest also spun the decision positively, saying that the administration was pleased with the outcome, as women are still able to access contraception under the Affordable Care Act. He said the accommodation for religious groups that the administration has already put forward shows that officials are “committed to both principles” of religious liberty and health care coverage.

He did not tie the unusual ruling directly to the high court’s vacancy, but did push for Senate hearings for President Obama’s nominee, Merrick Garland.

“It’s not obvious that an additional justice would have yielded a different result, but I haven’t heard anybody make the argument that leaving the Supreme Court of the Untied States short-staffed is somehow good for the country,” he said.