U.S Supreme Court Sends Birth-Control Case Brought by Religious Employers Back to Lower Courts
WASHINGTON—The Supreme Court, unable to resolve the dispute between religious employers and the Obama administration over contraception coverage in the government’s health-care law, sent the matter back to lower courts to seek a compromise between the parties.
The move Monday prolongs the four-year fight over whether the groups must offer contraception coverage under the Affordable Care Act. It also highlights how Justice Antonin Scalia’s February death has hobbled the ability of the court’s eight remaining members to resolve the most contentious cases.
In a brief, unsigned opinion that Chief Justice John Roberts summarized from the bench, the justices returned the contraception issue to the lower courts to review whether recent movement in the parties’ positions had paved the way to possible compromise. Days after the justices first heard arguments in the case in March the court issued an extraordinary order seeking an agreement between the sides.
The government and its opponents “should be afforded an opportunity to arrive at an approach going forward that accommodates [the employers’] religious exercise while at the same time ensuring that women…receive full and equal health coverage, including contraceptive coverage,’” Monday’s opinion said.
The court, it added, “expresses no view on the merits of the cases”—and that, in the interim, “nothing…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.”
At issue is whether the Obama administration has done enough to address objections from Christian colleges, Catholic charities and other religiously-affiliated employers that they must include birth control in their health benefits.
The dispute adds to the roster of legal fights surrounding the health act since its 2010 passage, which continued last week when a federal judge ruled the government was improperly reimbursing insurers for discounts to low-income enrollees.
The administration has defended a system in which employers notify the government of their objection and insurers are tapped to provide contraception benefits instead. The religious challengers have maintained that such a system makes them complicit in sin and that they need greater separation from it.
“We are all grateful to God and the Supreme Court justices that they…recognize our willingness to reach a resolution that allows us to abide by our faith and the government to achieve its goals,” said the lead case’s plaintiff, the Most Rev. David Zubik, Roman Catholic bishop of Pittsburgh.
President Barack Obama said in a Monday interview with BuzzFeed that “the practical effect is, right now, women will still be able to get contraception if they are getting health insurance and we are properly accommodating religious institutions who have objections to contraception.” He again pushed for Senate Republicans to consider his nominee to succeed Justice Scalia, Judge Merrick Garland.
“My suspicion is if we had nine Supreme Court justices instead of eight, we might have a different outcome,” the president said. Despite recent movement prodded by the Supreme Court, religious organizations and the government remain far apart on a compromise, all but assuring that the issue will remain unresolved through the rest of Mr. Obama’s term.
At March arguments over the case, the justices were poised for deadlock. The four conservatives appeared sympathetic to religious claims that the administration’s workaround tangled them too much in a practice they abhor. The four liberals seemed skeptical that the employers’ concern could be reconciled with the government interest in providing employees unfettered access to birth control.
While the employers object to filing a form with the government as the workaround requires, the government also rejects the employers’ proposed solution: offering a separate, contraceptive-only policy to employees.
In the court’s unusual order seeking compromise the justices asked the parties to address through additional briefs whether contraceptives could be provided through “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 April briefs filed in response to the request didn’t appear to put the parties much closer to a compromise.
To date, every federal appeals court to consider the issue but one has upheld the administration’s workaround as sufficient to meet requirements of the Religious Freedom Restoration Act, which provides an exception to federal laws that “substantially burden” religious exercise unless a compelling governmental interest cannot be achieved in a less restrictive way.
Monday’s opinionwiped away the lower court decisions, and asked the appeals courts to start again based on the new briefs submitted by the parties in April.
As a practical matter, the decision appears to leave the administration’s workaround in place except for specific plaintiffs whom the government already knows have objected to coverage.
Two of the court’s liberals—Justices Sonia Sotomayor and Ruth Bader Ginsburg—added a concurring opinion to stress the ruling took no position on which side had the better argument, chiding the one appeals court that ruled against the government, the Eighth Circuit in St. Louis, for misreading earlier Supreme Court orders as signaling the justices were leaning against the administration.
“The opinion does not…endorse [religious employers’] position that the existing regulations substantially burden their religious exercise” or agree that only a separate contraceptive policy would satisfy federal religious-freedom laws, they wrote.
The Catholic-affiliated plaintiffs object to prescription birth control. The other Christian challengers are opposed specifically to forms of emergency contraception and intrauterine devices, which they consider tantamount to abortion.
The question affects as many as a million Catholic nonprofit employees, as well as the institutions for which they work. It also affects other Christian-linked employers, including some for-profit employers affected by the court’s 2014 Hobby Lobby ruling that said certain business owners’ religious beliefs should be considered when Congress wrote laws.