May 17, 2016

In Obamacare Religious Freedom Case, SCOTUS Says to Work it Out

  • Yesterday, the Supreme Court released a unanimous, unsigned opinion declining to decide Zubik v. Burwell, the consolidated religious freedom challenges to Obamacare’s contraceptive mandate.

  • The court asked the parties to find an accommodation that satisfies both sides. In the meantime, religious groups not complying with the mandate cannot be fined.

  • If the parties don’t reach an agreement, the circuit courts will likely re-decide the cases based on the briefing before the Supreme Court.

Yesterday, the Supreme Court released a unanimous, unsigned opinion declining to decide Zubik v. Burwell, the consolidation of seven cases challenging Obamacare’s contraceptive mandate. The court sent the cases back to the circuit courts to give the parties “an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring” contraceptive coverage for women. Essentially, the court told the parties to work it out.

“The Court expresses no view on the merits of the cases.” – Zubik v. Burwell, 05-16-2016

The court’s decision does not take any position on whether the contraceptive mandate substantially burdens the religious exercise of employers like the Little Sisters of the Poor. Justice Sotomayor filed a concurring opinion emphasizing this point and counseling lower courts against construing the opinion as a signal of the court’s views.

It appears that the court’s decision is an attempt to avoid a 4-4 decision, which would have left conflicting circuit court decisions in place. The court’s decision vacated the circuit court decisions and set up the cases for new consideration in light of the briefing before the Supreme Court. The court prohibited the government from taxing or penalizing the religious groups in the case while the litigation continues.

BACKGROUND

The issue in Zubik is the administration’s religious “accommodation” to the contraceptive mandate. This allows organizations with religious objections to providing contraceptive coverage to notify their insurers of their objections, at which point the insurers must cover the expense of the contraceptives. Religious groups argue that the notification requirement is a substantial burden on their free exercise of religion under the Religious Freedom Restoration Act.

After the court heard oral arguments in the case in March, it took the unusual step of asking the parties to provide supplemental briefs addressing whether there was an alternative accommodation that could satisfy both the employers’ religious exercise concerns and the government’s interest in seamless contraceptive coverage. In the opinion yesterday, the court stated that these briefs showed that such an alternative “is feasible,” and the parties should have an opportunity to pursue this alternative.

GOING FORWARD

The seven cases consolidated under Zubik will be sent back to their respective circuits. The court encouraged the circuit courts to give the parties time to find a new accommodation. If the parties do negotiate a work-around, the cases could settle. If the parties cannot reach an agreement, the circuit courts would re-decide the RFRA claims, setting up the Supreme Court to potentially hear the issue again.

In the meantime, the court called a truce between the parties. It stated that the government could move forward with requiring insurers to provide female employees of the religious organizations with contraceptive coverage, relying upon the litigation as notice that the organizations object to providing the coverage themselves. Because the litigation provides notice, the government may not tax or penalize the religious organizations for failure to provide the type of notice mandated by the administration.

Issue Tags: Judiciary, Health Care