Amid signs that the votes were not there to decide the latest controversy over the Affordable Care Act, the Supreme Court on Monday shunted to lower courts the dispute over access to contraceptives and once again nudged the two sides to work for a compromise.In the meantime, the Obama administration has the Justices’ clearance to go ahead and arrange for that access for the employees and students of non-profit religious charities, hospitals and colleges that object to birth-control, and those institutions have protection against financial penalties for not providing that access themselves.
As a result of an unsigned opinion and several orders, the hotly disputed cases that will go in the books under the title Zubik v. Burwell came to a surprising end before the Justices with their ultimate fate probably tied up with what happens in the federal elections on November 8. The future of the entire federal health care law, the ACA, is a forefront issue in this year’s presidential and congressional elections.
Although the court took note of the “gravity of the dispute,” a comment that normally would indicate that the Justices believed it was the kind of controversy to be settled by the highest court and which they had, indeed, agreed to take on, in the end the outcome left all of the legal issues unresolved and open.
While the federal appeals courts to which the cases were sent will be free to decide on their own how they plan to proceed with a new round of review, it is unclear when new decisions will emerge and the controversy seems likely to linger, unless the two sides find a way to settle their dispute.
The court not only disposed of the seven cases it had agreed last November to decide, sending them down to four federal courts of appeals for a new look, but also at the same time ordered three appeals courts to reconsider six other cases that the Justices had not yet agreed to review.
That cleared the court’s docket of all of the birth-control cases that had reached it, but it did so without a final decision on whether the birth-control mandate is legal under the federal Religious Freedom Restoration Act. (Although the cases were taken on by the court on the basis of interpreting that federal statute, all of the cases had strong overtones of religious freedom, and thus seemed almost to rank as constitutional symbolism if not actually constitutional in legal form.) More than 60 cases had developed across the country on that dispute, and the court’s decision had been widely and eagerly awaited.
Because the court stressed that it was, in essence, deciding nothing itself on the legality of the mandate, the impression was clear that, with only eight Justices on the bench, a five-Justice majority probably had turned out to be out of reach. Had the court gone ahead and ended the cases with a 4-to-4 split, that would have left intact lower court rulings that were in conflict over the mandate’s legality, creating a difficult situation for enforcing the mandate in differing states.
The Zubik group of cases were one of the most prominent and potentially consequential cases on the court’s decision docket this term. Even so, the court began sending signals in late March that it was having difficulty – in the wake of the death of Justice Antonin Scalia in February – finding a way to decide them. So, it floated a compromise proposal of its own creation, and asked the two sides to react to it.
When the reactions were filed, it appeared that the two sides were still far apart. But there were some signs that both the federal government and the religious institutions, each in their turn, might be softening their positions somewhat.
On Monday, the court took those latest filings, rather freely interpreted them as potential openings for some common ground, and then told the lawyers to go back to the federal appeals courts where each of the cases had originated. Tellingly, the court told the federal appeals courts involved to give the two sides “an opportunity to arrive at an approach going forward” that would protect the access of women workers and students to birth-control devices and techniques and – simultaneously -- accommodate the religious institutions’ beliefs against the use of at least some forms of contraceptives.
The action of the court sought to accomplish those results by treating the fact that the religious non-profits had filed suits to challenge the birth-control mandate as a way for them to notify the government of their objection, thus setting the stage for the government to move forward to make the arrangements for actual access, perhaps independently of the institutions’ own health plans, and without penalizing the non-profits for their stance.
The court set no timetable for the next round in the courts of appeals. And its opinion and order said not a word about whether the government would have to write new regulations to carry out the assurance of access. Existing regulations are in a form to which the religious non-profits vehemently object, saying those rules compel them to violate their religious beliefs as the only way to avoid ruinous financial penalties for failing to provide access to contraceptives as the ACA mandates.
Government agencies, almost by nature, do not write new regulations swiftly. The government does have a strong commitment to making the ACA birth-control mandate actually work in real-world terms. And, with President Obama’s remaining time in office declining as the next seven months unfold, there will be an incentive to try to rescue the program as soon as possible.
The court tried to send a signal that it was unanimous in that the opinion it issued came out under the name of the entire court (“per curiam”) rather than under the name of any single Justice as the principal author of the outcome. Chief Justice John G. Roberts, Jr., did personally announce the result in the courtroom.
Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, did write a separate opinion with the specific aim of encouraging the federal appeals courts not to conclude that the court had sent any signals on how the legal issues should now be decided. Those two Justices particularly expressed strong support for the government’s effort to assure women’s access to the contraceptives without having to pay anything or without having to take any unusual steps to gain access.
It will be up to the appeals courts, in the first instance, to decide how to interpret the actions of the Justices. If the two sides do not find a way to compromise, and if the lower courts do come to a new disagreement, the dispute could be back at the; Supreme Court at some point – assuming that the entire ACA survives this year’s political process.
