WASHINGTON — The Supreme Court sought a compromise Monday (May 16) on challenges by nonprofit religious groups to the federal requirement that they play a minor role in offering free coverage of contraceptives to their female employees.
The justices unanimously sent the cases back to federal appeals courts in hopes that they can emerge with a way to honor the objections of religious nonprofit groups, such as charities and hospitals, while still guaranteeing free birth control to their employees.
“The court expresses no view on the merits of the cases,” the opinion stated. “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.”
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The ruling was another example of the eight-member court’s relative inertia without Justice Antonin Scalia. Already this year, the court has tied 4-4 in three cases, including a major labor rights case, and has greatly reduced the number of new cases it is accepting for next term. On Monday, it also sent a major class action case back to a federal appeals court for further action.
Abortion-rights and women’s groups reacted bitterly to the decision, while religious nonprofits that have fought the Obama administration’s contraceptives rule were pleased. Those reactions reflected the betting line going in; most appeals courts had sided with the administration, while only one went the other way.
“We are very encouraged by the court’s decision,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represented the Little Sisters of the Poor in one of the seven lawsuits. “There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”
“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,” Grethen Borchelt of the National Women’s Law Center said. “Eight of nine circuit courts of appeals have already upheld women’s access to birth control no matter where they work.”
The battle over the so-called ‘contraceptive mandate’ was one of the high court’s biggest issues this term, pitting religious liberty against reproductive rights for the second time in three years. In 2014, the court ruled 5-4 that for-profit corporations whose owners objected to the rule could have their insurance plans deliver the health benefit directly.
That same accommodation previously had been offered to religious groups such as charities, hospitals and universities, but dozens of them complained they would be tainted even by transferring responsibility for services they equate with abortion to insurers or third-party administrators. They sought the same blanket exemption granted churches and other religious institutions under the Affordable Care Act.
Without Justice Antonin Scalia on the court, it was obvious during oral arguments in March that the religious groups lacked the five votes needed to overturn most lower court rulings against them. The court’s conservative justices said the government should not be able to “hijack” the insurance plans of religious groups against their moral beliefs. The liberal justices said employees should not have to find and pay for separate insurance policies just for contraceptives.
Justice Sonia Sotomayor reiterated that point in a concurrence signed by Justice Ruth Bader Ginsburg. The court’s opinion, she wrote, “does not … endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a ‘separate policy.'”
The justices could have issued a 4-4 decision upholding all lower court rulings, but they differed from one part of the country to another. They also could have rescheduled the case for when the court is back to full strength. But that could take a year or more, because Senate Republicans have refused to consider President Obama’s nomination of federal appeals court Judge Merrick Garland to replace Scalia.
Instead, the court issued an unusual order shortly after hearing the case in which it suggested ways for the two sides to come together. Both sides responded, leading the justices to send the cases back to the four appeals courts from where they came.
All but one of those courts had upheld the government mandate. The 8th Circuit appeals court, however, ruled in favor of the nonprofit organizations. For the time being, therefore, the rule applies in most of the country, but not in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.
(Richard Wolf writes for USA Today)