WASHINGTON — In a unanimous decision May 16 in the HHS contraceptive mandate case involving the Little Sisters of the Poor, the U.S. Supreme Court refused to rule on the matter and instead directed that lower courts try to resolve the conflict between the Obama administration and plaintiffs.

Lawyers for the Little Sisters of the Poor characterized the action as a significant win for their clients.

“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,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead attorney for the Little Sisters of the Poor.

In a rare move in the middle of a case, and following oral arguments in March, the Supreme Court ordered both sides in the dispute to seek to craft alternative solutions that would guarantee both employees’ contraceptive coverage and religious-freedom protections for the nonprofit plaintiffs.

The case in question, Zubik v. Burwell, consolidated the Little Sisters of the Poor’s lawsuit against the contraceptive mandate with six other cases that have also been heard by appellate courts, with unfavorable verdicts for the religious plaintiffs. Other Catholic plaintiffs include the Archdiocese of Washington, the Diocese of Pittsburgh, The Catholic University of America and Priests for Life.

Altogether, more than 300 plaintiffs have sued the federal government over its insistence that the Affordable Care Act — better known as Obamacare — mandates that employer-provided health-insurance plans cover contraceptives, abortifacient “morning-after pills” and sterilization, without deductibles or co-pays.

After the mandate was issued and entities such as the Little Sisters of the Poor objected, the government subsequently offered an “accommodation” to some of the objecting parties. Under its terms, opponents could notify the government of their religious objections by submitting a form, after which the government would then direct their insurers to provide the mandated coverage free of charge.

Zubik v. Burwell specifically asked the justices to consider whether the accommodation violated the 1993 Religious Freedom Restoration Act (RFRA).

According to Sister Constance Veit, spokeswoman for the Little Sisters of the Poor, they and other religious nonprofits balked at the accommodation for several reasons.

“It was never a matter of a signature on a form that we objected to,” she told the Register. “We objected to our being forced into signing a form that [would have given] the Department of Health and Human Services the right to come in and change our health plan to include those [contraceptive] services.”

The Little Sisters’ lawyers argued the government “accommodation” actually “authorized” the provision of services, because those signing the form are effectively acting as “gatekeepers” for the contraception coverage.

Just days after hearing oral arguments, the Supreme Court on March 29 unexpectedly requested supplemental briefs from both the government and the plaintiffs, or petitioners, as they are also known, addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”

In their supplemental brief, the plaintiffs proposed an alternative: When setting up their health plans, they would tell their insurers they wanted ones without coverage for contraceptives, sterilizations and abortion-causing drugs. The insurers would take note and offer employees “cost-free contraception coverage” entirely outside of the employee health plans. And in its supplemental brief, the administration conceded, “The accommodation 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.”

“Both petitioners and the government now confirm that such an option is feasible,” the Supreme Court justices noted in their unanimous May 16 statement. Taking this information into account, the court — which now is regarded as being evenly split on many key cases since the death of Justice Antonin Scalia — voided all appellate decisions involved in Zubik v. Burwell and directed the Courts of Appeal to forge a compromise between the government and the plaintiffs.

The justices wrote that 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.’”

 

Who Won?

Each side claimed victory.

Presidential spokesman Josh Earnest said, “We were gratified by the ruling today. And this announcement does ensure that millions of women across the country can continue to have access to their health care. And it is a reflection of something that we have long believed, which is that it is possible to prioritize both access to health care for everybody, while protecting the religious liberty of every American. That’s what we sought to do, and we obviously are pleased that this is something that will continue to remain in effect.”

Petitioners see things very differently. Along with interpreting the court’s move as a clear validation of their argument that the accommodation infringed on their religious liberty, the plaintiffs pointed out that the justices have also removed the administration’s ability to financially penalize them at this time for noncompliance with the mandate. The Little Sisters alone faced $70 million per year in fines.

“We know we’re protected now, and we will not be forced out of existence here in the United States by those huge fines we were facing,” said Sister Constance.

Legal scholars counsel caution, however.

“You can see the court is still somewhat divided. Justices Sotomayor and Ginsburg bent over backward in their concurring opinion to point out that the lower courts are free to start over,” said Robert Destro, a professor at The Catholic University of America’s Columbus School of Law. In other words, the lower courts that found in favor of the government and against the plaintiffs remain free to arrive at the same conclusion, if no mutually acceptable arrangement with the plaintiffs can be negotiated.

 

‘Unbridgeable’ Differences?

Professor Douglas Laycock of the University of Virginia, an expert on religious-liberty issues, told the Register in an email, “It’s a win for the religious groups, in the sense that they live to fight another day. But they didn’t win anything on the merits, and there were very serious disagreements between the two sides in the supplemental briefing. I think the lower courts will find those disagreements unbridgeable.”

Added Laycock, “The court bought time and probably hopes to be returned to full strength before these cases come back. It is likely to be disappointed. There probably won’t be a new justice seated until October 2017.”

University of Notre Dame law professor Gerard Bradley also has a guarded interpretation of the effects of the Supreme Court’s move.

“The ruling is good, as far as it goes, and counts as a tactical victory for the religious plaintiffs,” he told the Register via email. 

Like many other analysts, Bradley said the ruling likely reflects a 4-4 split among the justices — combined with a desire not to simply allow the lower-court decisions to remain in force by declaring such a tied verdict. And he credits Chief Justice John Roberts as likely being responsible for finding an avenue through which at least some of the outstanding mandate cases can be resolved by mutual agreement, which would be an improvement on the current situation for the Zubik plaintiffs, since they all lost their cases at the appellate level.

But Bradley more broadly assesses the Supreme Court’s action as “a strategic victory” for the government, since the court seemed to rule from the premise that only the specific manner the accommodation was applied is flawed, in terms of respecting the plaintiffs’ religious liberty, rather than holding that the accommodation itself inherently compromises religious liberty because it facilitates access to contraceptive health services that the plaintiffs believe to be gravely immoral, through health-insurance plans that the plaintiffs are required to provide.

“According to the terms of the armistice on offer in yesterday’s opinion, the parameters of the ‘accommodation’ remain exactly the same as before,” Bradley said. “All that is to be negotiated is exactly how a religious employer will convey to its insurer (or to the government, which would, in turn, tell the insurer) that it does indeed want the ‘accommodation.’ We should, therefore, expect that, over the next several months, many of the complaining religious parties will recognize the limited nature of their victory yesterday and try again to seize the strategic initiative in this momentous litigation.”

 

Immediate Impact

For the time being, those involved in litigation against the mandate are drawing attention to the immediate positive impact of the Supreme Court’s ruling.

Michael Warsaw, chairman of the board and Chief Executive Officer of EWTN Global Catholic Network, which is involved in a separate lawsuit against the mandate, issued a May 16 statement on the ruling. The National Catholic Register is a service of EWTN.

“The Supreme Court has now said what we have been saying throughout our challenge of the mandate: that the government does indeed have less restrictive means to accomplish its goals without forcing religious organizations like EWTN and the Little Sisters of the Poor to violate our strongly held moral beliefs or face crushing fines,” Warsaw said.

“With regard to EWTN’s own case, today’s ruling by the Supreme Court strikes down several of the key decisions upon which the 11th U.S. Circuit Court of Appeals based its previous ruling against EWTN. While we await further action by the 11th Circuit in the EWTN case, we are even more confident that we will prevail.”

For Daniel Blomberg, counsel with the Becket Fund for Religious Liberty, the bottom line is simple.

“The sisters aren’t saying the government can’t do what it wants,” he said. “It just needs to leave the sisters out of this. That’s all they’ve been asking for all along.”

Brian O’Neel writes from Philadelphia.

Register staff contributed to this report.