A short-handed Supreme Court on Monday sent back to the lower courts several challenges to the Affordable Care Act’s contraceptive-coverage requirement, saying there was a possible compromise between religious objectors and the Obama administration.
The unsigned and unanimous three-page decision was unusual — and largely a punt by a court equally divided along ideological lines after the death of Justice Antonin Scalia in February.
Both sides in the lawsuits had made concessions since the case was argued in March, Chief Justice John G. Roberts Jr. said in announcing the decision from the bench.
A pause will provide an opportunity for them 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,” the opinion said.
The carefully balanced and narrow decision — the court went out of its way to say it was not deciding the merits of the case — is indicative of the cautious approach the justices have taken since Scalia’s death. They have said they are trying to avoid deadlock when possible. More narrow decisions are likely, and the court has slowed its pace of accepting controversial cases for next term.
The contraceptive case was supposed to have been one of the big ones this term. It asked how to make good on Obamacare’s promise that women will receive the health-care coverage they are entitled to when they work for religiously affiliated organizations that believe providing the coverage implicates them in sin.
The next steps are unclear, although the opinion revives challenges to the law filed all across the country and seems to envision some sort of negotiation between the objecting organizations and the administration.
“This is a very short order that raises lots of questions,” said Louise Melling, deputy legal director of the American Civil Liberties Union, which sided with the administration.
On the one hand, the decision vacated a series of lower-court rulings that said the Obama administration had done enough to accommodate the objections of religiously affiliated organizations such as hospitals, charities and universities. Eight of nine appeals courts that considered the issue ruled for the administration.
For the challengers, vacating those decisions was key. “I think anyone would recognize that as a win,” said Mark L. Rienzi, a lawyer with the Becket Fund for Religious Liberty, which represents a charity of nuns called Little Sisters of the Poor.
On the other hand, the court ruled that “nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the government to ensure that women covered by petitioners’ health plans obtain, without cost, the full range of FDA-approved contraceptives.”
In an interview with BuzzFeed on Monday afternoon, President Obama emphasized that the “practical effect is right now, women will still be able to get contraception if they are getting health insurance, and we are properly accommodating religious institutions” that are opposed to providing it.
The case represents the fourth time the court has examined the Affordable Care Act, Obama’s chief domestic achievement.
At oral argument, the court’s four liberals seemed to agree that the administration had offered an acceptable compromise for religiously affiliated organizations that want to be freed from the obligation, which they say violates their religious beliefs.
The accommodation requires the groups to tell the government they object, then allows the government to work with the groups’ insurers to provide the coverage without the organizations’ involvement or financial support.
But the groups said they should be exempt from the provision, just as churches are. And the court’s four conservatives at the March arguments sounded as if they agreed with the challengers that the government was trying to “hijack” their insurance plans to provide contraceptive coverage, rather than finding a way to provide the coverage without involving the groups at all.
Days later, the court took the highly unusual step of offering its own vision of a compromise. The justices directed both sides to file briefs addressing how employees could receive contraceptive coverage through their employers’ plans, “but in a way that does not require any involvement” from the employers beyond their decision to provide health insurance.
In Monday’s decision, the court said those briefs showed that “such an option is feasible.”
The court said the religious groups agree that they do not object to their employees receiving contraceptive coverage from the groups’ insurance companies if the employers themselves “do nothing more than contract for a plan that does not include coverage for some or all forms of contraception.” The cost would be borne by the insurance company or the government.
The court said the government agreed that such a plan could work “while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”
The details, the justices said, should not be worked out at the Supreme Court but in the lower courts. Presumably, any conflicts would not be back at the Supreme Court before a new justice is confirmed.
Rienzi said the groups have no objection to women receiving the contraceptives. “All we’ve ever said is: Not our plan,” he said.
The court went to great lengths to be balanced in its opinion, saying that it “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 that the administration can understand that the groups that brought the challenge have formally declared their opposition, and that it can move forward in providing coverage to the groups’ employees.
It also said the groups cannot be fined for failing to provide the coverage.
Justices Sonia Sotomayor and Ruth Bader Ginsburg issued a concurring opinion that said lower courts should not take the action as an endorsement of a proposal put forward by the religious organizations that women receive contraceptive coverage through a separate policy.
“Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act,” Sotomayor wrote.
Women’s rights groups, which had won the vast majority of cases in the lower courts, worried that the Supreme Court’s action was a setback.
“We are disappointed that the court did not resolve once and for all whether the religious beliefs of religiously affiliated nonprofit employers can block women’s seamless access to birth control,” said Gretchen Borchelt, vice president of the National Women’s Law Center. “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.”
Lawyers representing the challengers saw the decision as a positive sign.
“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,” said David Cortman, senior counsel for the Alliance Defending Freedom. “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.”
The combined cases are known as Zubik v. Burwell.
Juliet Eilperin contributed to this report.