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Supporters of religious non-profit organizations rallied outside the Supreme Court during oral arguments last week.(Photo: Richard Wolf, USA TODAY)
WASHINGTON — The Supreme Court sought a compromise Monday on challenges<span style="color: Red;">*</span>by non-profit religious groups to the federal requirement that they play a minor role in offering free coverage of contraceptives to their female employees.
The justices unanimously sent the cases back to federal appeals courts in hopes that they can emerge with a way to honor the objections of religious non-profit groups, such as charities and hospitals, while still guaranteeing free birth control to their employees.
"The court expresses no view on the merits of the cases," the opinion stated. "In particular, the court does not<span style="color: Red;">*</span>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 ruling<span style="color: Red;">*</span>was another example of the eight-member court's relative inertia without Justice Antonin Scalia. Already this year, the court has tied 4-4 in three cases, including a major labor rights case, and has greatly reduced the number of new cases it is accepting for next term. On Monday, it also sent a major class action case back to a federal appeals court for further action.
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Religious non-profits that have fought the Obama administration's contraceptives rule were pleased with the ruling, because it struck down several appeals court decisions and absolved objectors from having to pay taxes or penalties in the meantime.
Sister Constance Veit of Little Sisters of the Poor shares a laugh with Eva Howse, a resident of a Washington, D.C., home run by the Sisters, in March.<span style="color: Red;">*</span>(Photo: Jarrad Henderson, USAT)
“This is a game-changer,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represented the Little Sisters of the Poor in one of the seven lawsuits.<span style="color: Red;">*</span>“The court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The court has eliminated all of the bad decisions from the lower courts. And the court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will."
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Abortion rights and women's groups reacted bitterly to the decision, largely because all but one federal appeals court had ruled in their favor already. The Supreme Court sent the cases back in hopes of reaching an elusive compromise.
"In punting today, the Supreme Court only forces women and families to wait longer to learn who in this country has the 'right' to interfere with a woman’s personal health care decisions," said Ilyse Hogue, president of NARAL Pro-Choice America. "Is it her boss, or is it her decision alone?"
“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," Grethen Borchelt of the National Women's Law Center said. "Eight of nine circuit courts of appeals have already upheld women’s access to birth control no matter where they work."
The battle over the so-called 'contraceptive mandate' was one of the high court's biggest issues this term, pitting religious liberty against reproductive rights for the second time in three years. In 2014, the court ruled 5-4 that for-profit corporations whose owners objected to the rule could have their insurance plans deliver the health benefit directly.
That same accommodation previously had been offered to<span style="color: Red;">*</span>religious groups<span style="color: Red;">*</span>such as charities, hospitals and universities, but dozens of them complained they would be tainted even by transferring<span style="color: Red;">*</span>responsibility for services they equate with abortion<span style="color: Red;">*</span>to insurers or third-party administrators. They sought the same blanket exemption granted churches and other religious institutions under the Affordable Care Act.
Without Justice Antonin Scalia on the court, it was obvious during oral arguments in March that the religious groups lacked the five votes needed to overturn most lower court rulings against them. The court's conservative justices said the government should not be able to "hijack" the insurance plans of religious groups against their moral beliefs. The liberal<span style="color: Red;">*</span>justices said employees should not have to find and pay for separate insurance policies just for contraceptives.
Nuns from the Little Sisters of the Poor and fellow plaintiffs leave the Supreme Court in March following oral arguments on religious non-profits' effort to eliminate contraceptives from their health insurance policies on religious grounds.<span style="color: Red;">*</span>(Photo: SAUL LOEB, AFP/Getty Images)
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Justice Sonia Sotomayor reiterated that point in a concurrence signed by Justice Ruth Bader Ginsburg. The court's opinion, she wrote, "does not ... endorse the petitioners' position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a 'separate policy.'"
The justices could have issued a 4-4 decision upholding all lower court rulings, but they differed from one part of the country to another. They also could have<span style="color: Red;">*</span>rescheduled the case for when the court is back to full strength. But that could take a year or more, because Senate Republicans have refused to consider President Obama's nomination of federal appeals court Judge Merrick Garland to replace Scalia.
Instead, the court issued an unusual order shortly after hearing the case in which it suggested ways for the two sides to come together. Both sides responded, leading the justices to send the cases back to the four appeals courts from where they came.
All but one of those courts had upheld the government mandate. The 8th Circuit appeals court, however,<span style="color: Red;">*</span>ruled in favor of the non-profit organizations. For the time being, therefore, the rule applies in most of the country, but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
White House press secretary said the ruling may be another indication of the court's shortcomings while shorthanded.
“Our concerns about the continued vacancy on the court persist,” Earnest<span style="color: Red;">*</span>said. “It’s not obvious that an additional justice would have yielded a different result, but I haven’t heard anybody make the argument that leaving the Supreme Court of the United States short-staffed is good for the country.”
Contributing: Gregory Korte
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