High Court Sends Back Contraceptive Cases Involving Religious Schools

By Mark Walsh — May 16, 2016 4 min read
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[UPDATED Monday 12:16 p.m.]


The U.S. Supreme Court on Monday unanimously set aside lower court rulings in the Affordable Care Act contraceptive-mandate cases, which involve a number of religious schools and colleges along with other religious organizations.

In an unsigned opinion in Zubik v. Burwell (Case No. 14-1418) read by Chief Justice John G. Roberts Jr. in the courtroom, the court said there were enough hints of progress toward a possible agreement to the dispute in supplemental briefs filed by the religious organizations, on one side, and President Barack Obama’s administration, on the other side. The dispute is over what steps the religious groups must take to opt out of offering required contraceptive coverage.

The case stems from the health law’s requirement that most large employers must offer group health plans with “minimum essential coverage,” which has been interpreted by the U.S. Department of Health and Human Services to include coverage of contraception.

Churches and some other religious organizations (church auxiliaries and the religious activities of religious orders) are exempt from the contraceptive mandate, but HHS declined to exempt many other religious employers, including schools, colleges, nursing facilities, and other nonprofits. Those include elementary and secondary schools in the Roman Catholic Diocese of Pittsburgh and the Archdiocese of Washington, D.C.

Under the disputed accommodation, those organizations must opt out of the program by informing the federal government in writing of their religious objections or face fines. The religious groups, which have moral objections to offering certain forms of contraception, contend that the government’s accommodation would make them complicit in providing such care.

After the eight-member Supreme Court appeared divided during March 23 arguments, the court sought to play mediator by asking for supplemental briefs on whether contraceptive care could be provided to the employees of the religious groups through their insurance companies, without any notice required from the religious groups.

The briefs that followed from the two sides were viewed as inching toward the justices’ suggested compromise, with some lingering roadblocks.

In the Supreme Court’s unsigned “per curiam” decision on May 16, the court said the religious groups “have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company.”

And, the high court opinion continued, the federal government “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’”

The Supreme Court said the parties have offered “significantly clarified views.”

“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 per curiam opinion states.

Thus, the justices unanimously sent all of the cases raising the question back to their respective federal appeals courts—seven in total—including some cases that arrived at the high court after the first set had been taken up for argument.

“The court expresses no view on the merits of the cases,” the opinion 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.”

The opinion said the federal government may not impose taxes or penalties on the religious groups involved for failure to provide the relevant notice because the government is on notice with respect to them because of the groups’ lawsuits.

The opinion was perhaps a way for a Supreme Court whose bench was shortened by the February death of Justice Antonin Scalia to not only steer the parties toward a compromise, but also to push the case off its docket until after the elections and the question of who will fill Scalia’s seat.

Justice Sonia Sotomayor filed a concurrence, joined by Justice Ruth Bader Ginsburg, to warn lower courts that “today’s opinion does only what it says it does.” She said the federal appeals courts should not assume the Supreme Court favors one approach or another to guarantee “seamless” contraceptive coverage to women.

Early reaction to the decision was mixed.

Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center, which backed the Obama administration’s stance in the case, said: “We are disappointed that the court did not resolve once and for all whether the religious beliefs of religiously-affiliated non-profit employers can block women’s seamless access to birth control. Eight of nine Circuit Courts of Appeals have already upheld women’s access to birth control no matter where they work. We are confident that the government’s birth control accommodation once again will prevail.”

Meanwhile, David Cortman, a lawyer with the Alliance Defending Freedom, which represents several religious colleges in the case, said “the Supreme Court was right to protect the Christian colleges and other groups from not having to pay fines or fill out forms authorizing the objectionable coverage. The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions. We look forward to addressing the remaining details as we advance these cases in the lower courts.”

A version of this news article first appeared in The School Law Blog.