Supreme Court Can't Make Up Its Mind In Religious Challenge To Obamacare

Zubik v. Burwell is one of the most closely watched cases of this term.
The Little Sisters of the Poor are one of many religious nonprofits that object to filling out a form that allows them to opt out of the Affordable Care Act's contraceptive requirement.
The Little Sisters of the Poor are one of many religious nonprofits that object to filling out a form that allows them to opt out of the Affordable Care Act's contraceptive requirement.
Joshua Roberts/Reuters

The Supreme Court on Monday failed to reach a definitive ruling in one of its biggest cases of the year -- a challenge to an accommodation under the Affordable Care Act that allowed certain religious nonprofits to opt out of contraceptive coverage for their employees.

The court's decision in the case, Zubik v. Burwell, was unsigned, only three pages long, and issued in the name of the whole court, perhaps underscoring how divisive the issue was for the justices. The rift was evident during oral arguments in the case.

"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 said in the decision.

Zubik reached the Supreme Court as a set of seven consolidated cases -- all brought by Christian institutions, colleges and associated nonprofits. The groups challenged an opt-out mechanism the Obama administration devised for organizations that otherwise didn't quite qualify for automatic exemption from the Affordable Care Act's contraceptive coverage requirement, as churches and synagogues do.

To these groups, complying with this opt-out scheme was akin to being complicit in their female employees' decisions to obtain contraception -- which, coupled with the threat of penalties for noncompliance, amounted to a burden on their beliefs under the Religious Freedom Restoration Act.

Caught between religious objections and the government's interest in ensuring contraceptive access, the justices issued a bizarre order, less than a week after hearing the case, instructing the Obama administration and the religious groups to reach a compromise.

That all but signaled the court was torn on how to rule.

In a decision that appears to cut both ways, the justices seemed to show deference to both the administration's efforts and the objectors' beliefs -- likely a result of a court struggling to reach consensus after the death of Justice Antonin Scalia.

"The Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice," the court declared, referring to the opt-out form that brought about the litigation.

Perhaps more drastically for the Obama administration, the Supreme Court effectively wiped out all of the government's prior wins in lower courts -- where it had a near-perfect streak -- and ensured that these cases will be ongoing.

"Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties ... 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 court said.

But the very core of these cases was left totally undecided, and the Supreme Court tried hard to not tip its hand as these disputes face a new round of appeals.

"The Court expresses no view on the merits of the cases," the justices said. "In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest."

Perhaps fearing that the court's decision might give certain religious employers the ability to stand in the way of their employees' access to contraceptive coverage, Justice Sonia Sotomayor wrote separately to clarify what Obamacare does -- and what it doesn't do.

"Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act," Sotomayor wrote, joined by Justice Ruth Bader Ginsburg. "And requiring that women affirmatively opt into such coverage would impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate."

Moments after the decision, the Supreme Court ruled separately in a number of pending cases that depended on the outcome in Zubik -- a spate of challenges involving the University of Notre Dame, a Catholic diocese and other religiously affiliated colleges and ministries.

As with the main ruling, these cases are expected to continue in lower courts for months, or maybe even years. With no resolution in sight, it wouldn't be surprising if another version of the case arrives at the high court -- perhaps by the time there's a ninth justice installed.

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