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Barnes writes: "The court punted the issue of Obamacare's contraception coverage back to lower courts."

Mother Loraine Marie Maguire of the Little Sisters of the Poor speaks to the media. (photo: Mark Wilson/Getty Images)
Mother Loraine Marie Maguire of the Little Sisters of the Poor speaks to the media. (photo: Mark Wilson/Getty Images)

Supreme Court Sends Obamacare Contraception Case Back to Lower Courts

By Robert Barnes, The Washington Post

16 May 16


short-handed Supreme Court declined Monday to decide challenges to an Affordable Care Act requirement about providing contraceptive coverage, saying that there was a possibility of compromise between religious objectors and the government.

The court punted the issue back to lower courts, and said its unanimous ruling “expresses no view on the merits of the cases.”

In the unsigned opinion, the court emphasized: “In particular, the Court 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 unanimous, three-page decision maintains the status quo, and indicates that the court — evenly divided along ideological lines following the death of Justice Antonin Scalia — could not reach agreement.

A week after oral arguments in the case, the justices took the highly unusual step of floating its own compromise about how to resolve the case, and asked the parties to weigh in.

“Both petitioners and the government now confirm that such an option is feasible,”said the opinion, a summary of which was read from the bench by Chief Justice John G. Roberts Jr.

The cases concern a provision of the Affordable Care Act that says employers who offer insurance coverage for their employees must include no-cost contraceptive coverage for women.

The Obama administration offered what it said was a compromise that would accommodate religiously affiliated organizations such as universities, hospitals and charities that wish to be freed from the obligation, but would still allow women to receive the coverage.

The accommodation requires the groups to tell the government that they object, then allows the government to work with the groups’ insurers to provide coverage without the organization’s involvement or financial support. Insurance companies say providing birth control is cost effective, and the government subsidizes it in some cases.

But the groups said the accommodation was not enough, and would still involve them in providing coverage that they say violates their religious beliefs.

The court’s action returns challenges filed across the country to lower courts. That means a final decision on the challenges would be unlikely before President Obama leaves office.

If the court had simply deadlocked 4 to 4 and upheld existing lower court decisions, it would have meant the law was interpreted differently in regions of the country. All but one court of appeals had ruled for the Obama administration.

The court’s ruling took a rosy view of how the religious groups and the Obama administration responded to its potential compromise.

“Petitioners have clarified that their religious exercise is not infringed where they ‘need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,’ even if their employees receive cost-free contraceptive coverage from the same insurance company,” it said.

It also said that government has acknowledged that the insurance plans could be modified in a way that would ensure that women “receive contraceptive coverage seamlessly, together with the rest of their health 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 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 Alliance Defending Freedom senior counsel David Cortman. “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. your social media marketing partner
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