With Justice Scalia Gone, Supreme Court Sends Zubik v. Burwell Back to Lower Courts May 16, 2016

With Justice Scalia Gone, Supreme Court Sends Zubik v. Burwell Back to Lower Courts

The Supreme Court won’t issue a definitive ruling in the controversial Zubik v. Burwell case, the latest one involving women’s access to contraception through their workplaces.

Today, the justices kicked the case back to lower courts, which have generally been in favor of women over their religious employers. It’s a relief considering what could have happened if Antonin Scalia were still on the Court today, but it means the details of how women working for certain employers will acquire their birth control are still very much up in the air.


By way of background, we know the Affordable Care Act says that employers must include contraceptive coverage in their employees’ healthcare plans. But as a result of the Hobby Lobby case, companies with religious owners who believe contraception is wicked (or, wrongly, that it amounts to abortion) don’t have to comply with the law. They’re exempt.

This new case involved the Little Sisters of the Poor, a Catholic non-profit. They also want an exemption to the law. Which is odd since they’re already exempt. They just have to fill out a form that basically says “Give us the exemption,” and that’s it.

So what’s the problem? Rolling Stone‘s David S. Cohen explained it well:

Apparently filling out a short form and putting a stamp on the envelope to mail it is too much for some religious non-profits. They want nothing to do with icky, filthy, non-procreative sex, even if no real effort or money on their part is required. So they sued, claiming this accommodation violates their religious liberty, just like Hobby Lobby’s. Almost every appellate court in the country agreed that this claim was absurd, but the 8th Circuit found otherwise in September.

To reiterate: Their problem was that filling out a form saying they don’t want to offer contraception coverage to their employees also violated their religious conscience. It’s the sort of logic that only makes sense to people who believe a communion wafer can magically become the flesh of Jesus…

Back in March, the eight remaining justices on the Court sent a letter to both sides in the case, asking them if there was an alternative to filling out the form. Would it be okay, they wondered, if religious non-profits just told their insurers they didn’t want to provide comprehensive health care to their employees? It was an exemption to the exemption that wouldn’t involve any interaction with the government.

Both sides seemed to agree that would be preferable and attainable.

As the Court noted today in its unanimous decision,

Both petitioners and the Government now confirm 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.

So back to the lower courts they go to work out the details of this compromise.

The Supreme Court didn’t rule on the merits, which is just fine given the alternatives. As it stands, employees working for religious employers will still have access to contraception. It’s just a matter of figuring out how.

The Becket Fund for Religious Liberty, which represented the Little Sisters, called it a win for groups that “needed relief from draconian government fines.”

“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters. The Court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead Becket attorney for the Little Sisters of the Poor. “It is crucial that the Justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious — the Little Sisters respectfully object. There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”

Americans United for Separation of Church and State was disappointed, saying tens of thousands of women would be left in limbo when it comes to how they would access birth control:

The Supreme Court punted this case so hard it flew into next year,” said Barry W. Lynn, executive director of Americans United. “That’s a shame. Birth control is a vital component of women’s health, and the result of today’s action is that it’s in limbo — once again.

“No other medication, medical procedure or medical device has been subject to this level of scrutiny by the Supreme Court,” Lynn said. “These never-ending legal challenges have given religious group far too much power over the medical and reproductive decisions of their students and staff. It’s time to break that grip.”

For now, at least, the possibility of a compromise that gives women access to contraception is still an option. It could have been much, much worse. In fact, Ian Millhiser at Think Progress notes that Scalia’s absence may have saved access to birth control for thousands of women. It’ll just be saved on a delay.

***Update***: The Secular Coalition for America denounced the decision:

“We cannot compromise on the First Amendment of the Constitution, yet that is precisely what the Supreme Court is asking the lower courts to do,” said Larry Decker, Executive Director of the Secular Coalition for America.

“The form that the religious nonprofits are refusing to sign is the compromise that protects their freedom of conscience. By rejecting the religious accommodation, the plaintiffs are demanding nothing less than the right to completely cut their employees off from accessing affordable contraceptives. There is nothing left to compromise. By kicking the can down the road, the Supreme Court has jeopardized women’s healthcare for the sake of religious privilege. We are hopeful that the lower courts will issue a firm decision protecting reproductive rights and upholding the true definition of religious freedom guaranteed by the First Amendment.”

The American Humanist Association, which submitted an amicus brief in this case, was also disappointed:

“The Supreme Court had the opportunity to stand up for the separation of church and state by giving women’s access to contraception priority over their employers’ religious beliefs,” said Roy Speckhardt, executive director of the American Humanist Association. “Instead the Court has delayed the decision, giving religious groups the opportunity to unjustly meddle with women’s right to healthcare.

“The lower courts should simply uphold the contraceptive mandate procedures,” said David Niose, legal director of the American Humanist Association. “The requirements of the Affordable Care Act do not substantially burden anyone’s religion, so the lower courts reconsidering this issue should not grant special privileges to religious organizations seeking to impose their views upon women.”

The Center For Inquiry was also dismayed:

“We are truly disappointed that rather than draw a clear delineation between an employer’s religious beliefs and an employee’s lawful rights, the Supreme Court has instead passed the buck,” said Nicholas Little, Vice-President and General Counsel for the Center for Inquiry. “How exasperating to now find ourselves back at square one, thanks to the Court’s failure to ensure the seamless provision of reproductive health care to the hundreds of thousands of women employed by religious non-profit organizations.”

“The idea that signing a piece of paper indicating unwillingness to obey a particular law could be considered a ‘substantial burden’ on an employer’s religious beliefs is flatly ludicrous, and the Court has an opportunity to scrap this line of argument once and for all. It is a true shame the Court lacked the wherewithal to make that call.

(Image via Shutterstock. Large portions of this article were published earlier)

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