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SCOTUS returns contraceptive coverage cases to lower courts

The Supreme Court on Monday returned several cases challenging an accommodation to federal contraceptive coverage rules to lower courts, instructing them to consider whether parties could reach a compromise, the New York Times reports.

The order was unsigned and unanimous (Liptak/Hirschfeld Davis, New York Times, 5/16).

Accommodation details

The contraceptive coverage rules, which are being implemented under the Affordable Care Act (PL 111-148), require most employers to offer contraceptive coverage to their workers. Houses of worship are exempt from the requirement. Not-for-profits that hold themselves out as religious, as well as certain closely held corporations, are eligible for an accommodation that ensures they do not have to pay for or directly provide the coverage for their employees. Instead, employees can receive coverage directly from their insurers.

To claim the accommodation, the not-for-profits may either complete a form to send to their third-party plan administrators or send a letter to HHS stating that they object to offering contraceptive coverage in their health plans.

Legal background

Some not-for-profits that hold themselves out as religious and oppose contraception have challenged the rules in federal courts throughout the United States. Most appeals courts have dismissed the challenges, finding that the federal rules do not impose a "substantial burden" on the religious beliefs of the not-for-profits.

In March, the Supreme Court heard a consolidated appeal challenging the accommodation. The high court was asked to determine whether the rules, with the accommodation, violate the federal Religious Freedom Restoration Act (RFRA) (PL 103-141), which requires the government to provide a "compelling reason" for measures that "substantially burden" religious beliefs. Further, under RFRA, the government must demonstrate that the measure in question is the least burdensome method of reaching the underlying goal.

During oral arguments, Solicitor General Donald Verrilli, representing HHS, said the accommodation affords "a sensible balance, respecting both the employer's religious views and the interests of their employees." Verrilli explained that after an eligible not-for-profit submits its notice of objection, the government independently requires the insurer or plan administrator to provide contraceptive coverage. The coverage is delivered through a third party, not an entity the employer owns or controls, Verrilli said.

Attorneys Paul Clement and Noel Francisco represented the plaintiffs. Clement claimed that the accommodation does not allow the groups to be "conscientious objector[s]." The groups are seeking the exemption afforded to houses of worship.

Supplemental briefs

After hearing oral arguments, the Supreme Court asked both sides to submit supplemental briefs "address[ing] whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees." In addition, the high court outlined one possible alternative and asked the parties to weigh in on whether it would be an acceptable compromise.

Lawyers representing the plaintiffs did not directly address in their brief whether they would accept the court's proposed alternative. The plaintiffs repeated their earlier suggestion of stand-alone contraceptive coverage plans for employees of not-for-profits that hold themselves out as religious and oppose contraception. They wrote that if contraceptive coverage is provided, it would only be acceptable to them if it was completely separate from their own insurance policy.

In the Obama administration's brief, Verrilli wrote that the government's accommodation did not need modification and that the Supreme Court's proposal, while possible to implement, would "impose real costs." Further, Verrilli wrote that the existing accommodation and the high court's proposition were similar. Verrilli's brief also rejected a scheme similar to the one proposed by the objecting not-for-profits for stand-alone contraceptive coverage plans, noting that it "would impose logistical obstacles on women seeking contraceptive coverage" and was "inconsistent with federal and state insurance law" (Women's Health Policy Report, 4/13).

In their response to the Obama administration's brief, lawyers for the not-for-profits reiterated their claim that the accommodation does not completely remove them from the process of facilitating access to contraception. The not-for-profits said it was the government's responsibility to craft an acceptable, "less restrictive" accommodation. Separately, the Obama administration in its response to the challengers' brief rejected the proposal for standalone contraceptive coverage policies, calling it an "unworkable" and "profoundly flawed" scheme (Women's Health Policy Report, 4/21).

SCOTUS order

The Supreme Court's latest order vacates the nine lower federal court rulings on the cases that comprise the consolidated appeal, all but one of which was decided in favor of the accommodation (Barnes, Washington Post, 5/16).

In the order, the justices wrote that the supplemental briefs indicate the Obama administration and the challengers can reach a compromise, which should be determined in lower courts. The Supreme Court suggested that the Obama administration could devise a means to provide contraceptive coverage to employees of not-for-profits that hold themselves out as religious without requiring such not-for-profits to take any action, even solely to indicate objection.

Specifically, the justices wrote that the not-for-profits in their supplemental brief "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." Meanwhile, "[t]he 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 justices stated.

The high court wrote, "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 justices directed lower courts to "allow the parties sufficient time to resolve any outstanding issues between them" (New York Times, 5/16).

The justices specified that "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 opinion specifies that the government can consider that the plaintiffs in the consolidated lawsuit have expressed their opposition to providing contraceptive coverage and proceed in extending such coverage to the plaintiffs' employees. The opinion also stated that the government cannot fine the plaintiffs for non-compliance with the accommodation (Washington Post, 5/16).

According to the Times, the justices underscored that the order does not constitute a decision on the case's merits. They wrote, "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" (New York Times, 5/16).

The high court also issued a separate order that sent back to the lower courts six other pending contraceptive cases on the matter, including two lawsuits in which the lower courts ruled in favor of the challenging not-for-profits (Hurley, Reuters, 5/17).

Concurring opinion

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a concurring opinion that reiterated the limited nature of the court's order.

Sotomayor wrote, "Today's opinion does only what it says it does: 'affords an opportunity' for the parties and courts of appeals to reconsider the parties' arguments in light of petitioners' new articulation of their religious objection and the government's clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice." She continued, "As enlightened by the parties' new submissions, the courts of appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases" (New York Times, 5/16).

However, Sotomayor added, "Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act."


Gretchen Borchelt, vice president of the National Women's Law Center, stated, "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." She said, "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."

Separately, Louise Melling -- deputy legal director of the American Civil Liberties Union, which supports the Obama administration's arguments -- stated, "This is a very short order that raises lots of questions" (Washington Post, 5/16).

White House press secretary Josh Earnest said the White House was "gratified" because the decision shows that religious liberty can be maintained under measures that prioritize health care access. He said the order "will allow millions of women across the country to continue to get the health coverage that they need" (New York Times, 5/16).

President Obama in an interview with BuzzFeed said the "practical effect is right now, women will still be able to get contraception if they are getting health insurance, and we are properly accommodating" not-for-profits that oppose contraception (Washington Post, 5/16).

While declining to "speculate as to why [the justices] punted" on the case, Obama added that he believes "if we had nine Supreme Court justices instead of eight, there might have been a different outcome." According to the Times, conservative lawmakers in Congress have refused to confirm Obama's nominee for the vacant Supreme Court seat (New York Times, 5/16).