The Slatest

Supreme Court on Contentious Contraception Case: We’re Not Gonna Decide

Supporters of Little Sisters of the Poor at a rally in front of the U.S. Supreme Court on March 23.

Mark Wilson/Getty Images

Monday morning, the U.S. Supreme Court took religious liberty off its docket, and also out of the center of the 2016 presidential election.

Zubik v. Burwell, the religious challenge to the contraception mandate in the Affordable Care Act, could well have been this year’s Hobby Lobby—a fight to the death about whether religious employers could withhold certain contraception from employees based on the employers religious objections. But instead of ruling on the merits of the case, or breaking any new ground at all on the pitched battle between a woman’s right to seamless contraceptive coverage and the religious objections of her boss, the Supreme Court simply sent the case back to the lower courts Monday, with an unsigned order asking the courts of appeals to attempt to work it out, based on some extra briefing that parties did after the case was argued in March.

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The short version of the conflict is this: The Affordable Care Act requires most employers to offer health insurance to their employees, including contraceptive coverage. Religious nonprofits were offered a work-around that allows them to file a one-page form with the federal government, so that the insurance company can step in and provide the coverage directly to their employees. But the plaintiffs, a charitable group called the Little Sisters of the Poor, claimed that the accommodation doesn’t ameliorate the problem because the act of filing the form triggers an action their religion abhors. This, the Little Sisters of the Poor says, violates their religious freedom under the Religious Freedom Restoration Act. Eight of nine circuit courts of appeals agreed with the Obama administration that this arrangement does not violate RFRA or burden the religious employers.

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After a contentious oral argument in March, the court looked ready to split in a 4–4 tie that would leave dissention and uncertainty around the country. The unsigned order Monday does the opposite: It asks the lower courts to try to resolve it again. After the case was argued, the high court asked for more briefing from both sides of the case, with the court itself proposing a new compromise arrangement wherein the objecting employer need not fill out a form but merely inform their insurer of their desire not to offer birth control coverage. Both sides offered up supplemental briefs and the court views this as a sign that its role as mediator here is done and that the parties are in a compromising state of mind.

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Monday’s unsigned order takes pains to explain that this is not a ruling on the merits, that the court is not deciding the issues the case: “The Court finds the foregoing approach more suitable than addressing the significantly clarified views of the parties in the first instance. 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.” Finally the court adds in some language suggesting that everyone is a winner: “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 also cautions that “the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”

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Justice Sonia Sotomayor filed a concurring opinion, joined by Justice Ruth Bader Ginsburg, effectively assuring us that the order doesn’t change a thing. As she puts it, “Today’s opinion does only what it says it does.” Which is: nothing. In most of the courts below, there is no real directive to change what they have already done.

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This is the court punting in the most elegant way imaginable, by suggesting that it’s always best to leave the courts and the parties to work it out on their own. Both sides will claim victory Monday. Women will not lose the right to contraception and the Little Sisters will not pay massive fines. The real winner is the high court, which will not dissolve in a mess of partisan bickering as it did after Hobby Lobby. The real loser is also the high court, which is working extra hard to try to prove that it isn’t limping along, celebrating its own inability to resolve cases, for at least this term and the next one.

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