Contraception Mandate Redux Kicked Back by Supreme Court

     WASHINGTON (CN) — The Supreme Court unraveled an appeal Monday by religious nonprofits that do not want to complete insurance forms about their objections to covering contraception for employees.
     Resolving the case on the merits seemed a far-off possibility after oral arguments in March, with the death a month earlier of conservative stalwart Antonin Scalia having left the court short one justice.
     Indeed days after the court’s divided hearing on this case, a 4-4 split by the justices on union fees neutered a hotly anticipated case of the term, Friedrichs v. California Teachers Association.
     Today’s resolution of Zubik v. Burwell proved unanimous, if similarly anticlimactic.
     Shortly after their hearing, the justices asked the parties to brief them on “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”
     Today’s five-page opinion says both the nonprofit challengers and the government have confirmed that such an option is feasible.
     “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,” the unsigned decision states. “The government 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.'”     
     The challenge at issue emerged in the wake of since the high court’s 5-4 split on curbing Obamacare’s so-called contraception mandate for closely held companies.
     With the justices having consolidated seven different decisions from across the country, the lead plaintiff in the appeal, Rev. David Zubik, is a Catholic bishop in Pittsburgh.
     He and fellow opponents of the Patient Protection and Affordable Care Act claim that the framework still makes them complicit in contraception use since individual insurers or third-party administrators take up that mantle for religious organizations that opt out of the contraception mandate,
     Today’s resolution vacates each underlying judgment from the U.S. Courts of Appeals for the Third, Fifth, 10th and D.C. Circuits, all of which found that the contraception mandate serves a compelling government interest, while giving religious groups an acceptable way out.
     “Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity 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 decision states.
     The ruling concedes that “areas of disagreement between the parties” may still exist on implementation and other issues, but “the importance of those areas of potential concern is uncertain, as is the necessity of this court’s involvement at this point to resolve them.”
     Emphasizing that today’s decision failure to reach the merits, the justices noted that the ruling “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.”
     “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,'” the ruling continues. “Through this litigation, petitioners have made the government aware of their view that they meet ‘the requirements for exemption from the contraceptive coverage requirement on religious grounds.’ Nothing in this opinion, or in the opinions or orders of the courts below, ‘precludes the government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage’ going forward. Because the government may rely on this notice, the government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.”
     Justice Ruth Bader Ginsburg joined a brief concurrence on the case by Justice Sonia Sotomayor.
     The four-page opinion chides “some lower courts” that in the past have ignored the justices’ disclaimers about failing to reach the merits.
     Sotomayor emphasized that the current resolution “allows the lower courts to consider only whether existing or modified regulations could provide seamless contraceptive coverage ‘to petitioners’ employees, through petitioners’ insurance companies, without any … notice from petitioners.'”
     “The opinion does not, by contrast, endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a ‘separate policy, with a separate enrollment process,'” Sotomayor added. “Such separate contraceptive-only policies do not currently exist, and the government has laid out a number of legal and practical obstacles to their creation. Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would ‘impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.'”

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