Supreme Court kicks ‘contraceptive mandate’ cases back to lower courts

The U.S. Supreme Court won’t rule on challenges by non-profit religious hospitals, colleges and charities that the Affordable Care Act’s so-called “contraceptive mandate” violates their protected religious freedoms, instead looking to federal appeals court for a compromise.

The case Zubik v. Burwell combined seven of these challenges from religious nonprofits, which argued that even filing a one-page form with HHS to opt out of the ACA’s requirement to provide free coverage of birth control to employees violates the 1993 Religious Freedom Restoration Act. The groups sought the same blanket exemption granted to churches and other religious organizations.

With the death of Justice Antonin Scalia in February, the remaining justices could’ve been deadlocked in a 4-4 ruling, meaning the lower courts’ ruling would be upheld. But in this case, the appeals courts didn’t all rule the same: five courts had ruled in favor of the mandate and one ruled against in the circuit covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota.

The decision now vacates those rulings and instructs the appeals courts to reconsider their positions based on new briefs filed by both sides.

“The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the [g]overnment has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest,” the Court said in its five-page decision. “Nothing in this opinion, or in the opinions or orders of the courts below, is to affect the ability of the [g]overnment to ensure that women covered by petitioners’ health plans “obtain, without cost, the full range of FDA-approved contraceptives.”

In analyzing the opinion, SCOTUSblog reporter Lyle Denniston said HHS will now have to find ways to implement the birth control mandate while waiting for the lower courts to act.

“It is already clear, however, that the Supreme Court’s action…does clear the way for the government to move ahead to do what it would need to do to assure access as a practical matter,” Denniston wrote. “Since the government has already expressed worry about delaying that access, it presumably will move rapidly—at least as rapidly as bureaucratic machinery can be put in motion—to carry out the mandate even as the appeals courts go forward with further review of the legal questions.”

In separate orders, the Court also pushed two similar cases, Burwell v. Dordt College and Burwell v. CNS International Ministries, back to lower courts. In both cases, courts had sided with the religious groups in challenging the mandate.