The battle over the accommodation offered to religious non-profits that object to complying with the Affordable Care Act’s birth-control mandate shifted back to the lower courts on Monday. In a brief, unsigned but unanimous opinion, the Justices essentially directed the Obama administration and the non-profits challenging the mandate to figure it out. But if they can’t, the dispute could be back at the Court – which by then could have all nine Justices.
Regulations implementing the Affordable Care Act require employers to provide their female employees with health insurance that includes access to certain forms of birth control, at no cost to the employees. That mandate does not apply to churches, which are exempt, but it does apply to a variety of other religious groups, including religious non-profits like the Little Sisters of the Poor, that also object to providing access to birth control. For these religious non-profits, the government created a work-around: if the non-profits notify the government of their objections, the government will make sure that the non-profits’ female employees will still receive coverage without a co-pay. But from the non-profits’ perspective, this solution also violates their religious beliefs, because they are still facilitating their employees’ access to birth control through their insurance companies.
The dispute worked its way through the courts, and late last year the Justices agreed to weigh in, granting review in not one but seven challenges. But between the November 6 order granting review and the March 23 oral argument, Justice Antonin Scalia died. Scalia had been one of the five Justices in the majority two years before, when the Court ruled that a for-profit company owned by a deeply religious family did not have to comply with the birth-control mandate. And with his death, what had once seemed like a possible victory for the challengers became much less certain, as the Justices appeared deeply (and perhaps evenly) divided.
Six days after the oral argument, the Court took a fairly unusual step. It asked both the Obama administration and the challengers to file another round of briefs to address a new question: whether coverage for birth control could be provided to the challengers’ employees, through the challengers’ insurance companies, but without any notice from the challengers themselves.
Because the briefs filed by both sides “now confirm that such an option is feasible,” the Court concluded, the Justices sent the cases back to the lower courts of appeals for a new look. “Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties,” the Court instructed, the Obama administration and the challengers should have a chance to work out a compromise that accommodates the challengers’ objection to participating in the provision of birth control to their female employees but still makes sure that those employees receive that coverage.
Why did the Court do this? (Besides, of course, the very real likelihood that, with the death of Justice Antonin Scalia the Court found itself deadlocked four to four in the case.) The Court seemed to be saying that, in light of what it saw as the substantial agreement between the parties, giving the parties an opportunity to resolve the dispute themselves is a better solution than trying to do it for them (particularly when, as I just noted, the remaining eight Justices may not be able to do so).
The Court also made clear that it was not deciding the substance of the case before it – whether the accommodation that the government offered to religious non-profits that object to providing birth control substantially burdens their exercise of religion, whether the government has a compelling interest in imposing that substantial burden, and whether it is using the least restrictive option to advance that interest. But the Court also observed that, as far as it was concerned, the challengers had put the government on notice that they objected to complying with the mandate; no other notice is required for the government to move forward in providing the challengers’ employees with access to birth control, nor can the government impose any penalties on the challengers for failing to provide that notice.
Justice Sonia Sotomayor filed a concurring opinion, which Justice Ruth Bader Ginsburg joined. The primary purpose of the concurrence seemed to be to reiterate (and, perhaps, caution) that Monday’s order gives the lower courts another chance to review the dispute in light of the new information in both sides’ supplemental briefs – nothing less, and certainly nothing more. It is not, Sotomayor warned, a reflection of the Court’s views on the dispute. To the contrary, she concluded, the lower courts “remain free to reach the same conclusion or a different one on each of the questions presented by these cases.” And that could set up a scenario in which (assuming that the Affordable Care Act itself survives – hardly a given in light of staunch Republican opposition to the law) the issue could return to a nine-Justice Court.