Zubik v. Burwell was supposed to be an epic showdown over the power of religious objectors to limit the rights of others. A sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby, Zubik involved regulations expanding women’s access to birth control that the conservative justices appeared to endorse in Hobby Lobby — even as they struck down a more direct method of providing contraceptive coverage to working women.
At oral arguments, however, the four remaining conservatives seemed to have a change of heart. Even Justice Anthony Kennedy, the justice who signaled the loudest in Hobby Lobby that he would tolerate the kind of regulations at issue in Zubik, appeared openly hostile towards the Obama administration’s arguments. The case seemed to be barreling towards a 4-4 non-decision. If conservative Justice Antonin Scalia had not died last February, it is all but certain that the case would have ended in a crushing defeat for the administration and for many women who hoped to benefit from the administration’s birth control rules.
But that’s not going to happen — at least not yet. On Monday, the Supreme Court handed down a brief, three-page opinion that effectively punts the case until next year at the earliest (and, presumably, after someone has been confirmed to fill Justice Scalia’s seat). The opinion explicitly “expresses no view on the merits” of Zubik and a raft of related cases. Instead, it sends these cases back down to the lower courts to consider the views expressed by both parties in supplemental briefing requested by the justices themselves.
As the Supreme Court notes in Monday’s opinion, the administration “has confirmed that the challenged procedures ‘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.’” However, that’s not the end of the story. The administration also explained to the Court that the justices’ proposed compromise may not work for employers that self-insure (that is, employers who pay out health claims directly to employees rather than joining them into a broader insurance pool).
In any event, the one thing that’s absolutely clear from the Court’s very brief, unsigned opinion inZubik is that it will not resolve any of the nuances of how employers should exempt themselves, what should happen to women who seek birth control after an employer exempts itself, and whether self-insurance or other situations present unique problems that call for a distinct rule. The Court wants this case to go away, at least for now.
One reading of Monday’s developments was that the Court, now functioning with eight Justices, was having difficulty composing a majority in support of a definite decision on the legal questions. Thus, what emerged had all of the appearance of a compromise meant to help generate majority support among the Justices. With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea — at present — what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.
Those uncertainties are now likely to linger through the remainder of President Obama’s term in office, which ends next January. The appeals courts may well order the filing of new legal briefs, and may hold new hearings, before issuing a new round of rulings on the controversy. However, the entire future of the ACA, including its birth-control mandate, may now depend upon who wins the presidential election this year and which party has control of Congress when it reassembles in 2017.
The three issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the ACA mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, whether the government had a “compelling interest” in assuring cost-free access to contraceptives, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the “least restrictive means” to carry out the mandate.
Doing on Monday much the same that it had done in several temporary orders at earlier stages of this controversy, the Court accepted that the non-profits already had given the federal government sufficient notice of their objection to the mandate, and that the government could use that notice as the basis for going ahead to provide actual access, at no cost, to the employees and students of those institutions.
The unsigned opinion that the Chief Justice announced included an attempt to explain why the Court was bypassing a definitive ruling on the legal issues. It cited the replies that both sides had filed, after the cases had been argued, in reaction to a suggested compromise plan devised by the Court.
The Court on Monday interpreted those filings as containing concessions that move the two sides somewhat closer together, but at the least provided a basis for letting the federal appeals courts be the first to analyze the meaning and impact of those concessions. The Court expressed the hope that the two sides would use this new opportunity, in the appeals courts, to work toward common ground that would protect the religious sensibilities of the non-profit institutions at the same time that women of child-bearing age would not be deprived of contraceptive devices and methods.
“We anticipate,” the Court said, “that the courts of appeals will allow the parties sufficient time to resolve any outstanding issues between them.” That appeared to be an invitation for the lower courts at least to explore whether the two sides could reach agreement without prolonging the court battles. It conceded, though, that there may still be “areas of disagreement” between the two sides.
It may just be my cynicism showing, but I don’t expect any of the litigants to go seeking common ground. This was from the beginning an ideological fight, and they’re not going to settle for anything less than victory. As the Trib noted, the district court in Texas originally found for the plaintiffs, HBU and East Texas Baptist University, but the Fifth Circuit overturned that verdict. I have no idea what happens from here, but I look forward to a Supreme Court with either a Justice Merrick Garland or a President Clinton-named Justice getting the case again in the future. TPM, Dahlia Lithwick, Rewire, and Daily Kos have more.