In the case now before the court, Zubik v. Burwell, the Little Sisters are joined by other plaintiffs including the Archdiocese of Washington, Bishop David Zubik of Pittsburgh, the pro-life group Priests for Life, and several Christian colleges and universities.
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The Court expressed no views on whether the accommodation process posed a substantial burden to the plaintiff’s religious exercise, whether it furthered a compelling government interest, or whether the regulations are the least restrictive way of advancing that interest.
The case was being closely watched as a test of a court that has been evenly split across ideological lines since the death of conservative justice Antonin Scalia in February.
The Supreme Court ruling laid out the possibility that the lower courts might be able to hash out a compromise.
Monday’s order directs lower courts to examine the answers provided by the parties to see if the dispute can be resolved.
After oral arguments, the Court had asked both the religious nonprofit petitioners and the federal government to address “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners”.
The justices declined to decide whether the accommodation crafted by the Obama administration in 2013 to ensure that the employees receive contraception coverage violates their employer’s religious rights. Citing religious beliefs, some groups, including the chain store Hobby Lobby, challenged the mandate, and the Supreme Court ruled in 2014 that companies like Hobby Lobby could be exempt from providing such coverage.
The justices could have issued a 4-4 decision upholding all lower court rulings, but that would have left different standards in different parts of the country. At that point, the federal government arranges for a third-party provider to offer it to women who want it.
In a separate order, the court sent six other pending cases on the same issue back to lower courts, including two in which the religious employers prevailed. It also said church-affiliated employers, including colleges and charities, need not pay for this coverage if they had religious objections to doing so.
“We are disappointed that the court did not resolve once and for all whether the religious beliefs of religiously-affiliated non-profit employers can block women’s seamless access to birth control”, Grethen Borchelt of the National Women’s Law Center said. 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.
If there is still disagreement between the parties, one or more of those cases could end up before the Supreme Court yet again.
The opinion was unsigned from the entire court.
The petitioners in the case brought the suit because they claimed that the application for exemption to the mandatory contraception requirement was an unnecessary burden on their exercise of freedom of religion.
The government says that system protects the religious employer’s freedom of conscience while ensuring women receive the health benefit.
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Legal analyst Lyle Denniston, who writes for scotusblog.com, a blog on the Supreme Court, similarly pointed out that the court’s attempt at compromise shows how it is “having to adjust its actions to deal with the fact that it is one justice short of its normal membership”.
