The U.S. Supreme Court made a rare move Monday, voting unanimously to send a case involving access to contraception back to the appeals court system, ordering them to seek a compromise.
The lawsuit in question was filed against the Obama administration by the Little Sisters of the Poor order of Catholic nuns and a number of other religious, nonprofit organizations that say they should not be required to provide employees with certain types of contraception, like the morning-after pill, because they are akin to abortion. The Zubik v. Burwell lawsuit is spurred by the Obamacare mandate requiring employers to provide workers with health care coverage that includes access to birth control.
"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 court opinion reads, quoting a brief by the federal government.
The unusual decision to defer the case back to the appeals court system could be due to the court being split 4-4 on the issue due to the shortage of one justice following the February death of Justice Antonin Scalia. If SCOTUS issued a deadlocked decision, the ruling of the lower courts would stand. Justices Ruth Bader Ginsburg and Sonia Sotomayor urged the appeals court, in a concurring opinion, to make sure that women receive "seamless" coverage, warning the courts not to take today's opinion further than it is intended.
"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," Justice Sotomayor wrote. "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."
This is the second time the high court has considered the Affordable Care Act's contraception requirement. In the Burwell v. Hobby Lobby case, the court determined in a 5-4 decision that the administration had to find another way to offer free contraception to women who are covered on insurance policies by family-owned companies if the employers objected to providing coverage for birth control. The alternative for such companies was the offer given to nonprofits affiliated with religious sects, which allowed them to go without paying for the coverage and avoid fines as long as they informed the government, insurers or plan administrators about their desire for an exemption.
The accommodation came under fire by the groups' leaders, who say filing for an exemption or having any affiliation with all or certain types of contraception is a violation of their religious rights as it puts them in a position to be "complicit" in making birth control available via their insurers or third-parties that would provide coverage to their employees.
In hopes of reaching an agreement on the issue, the high court requested back in March that the government and religious organizations "address 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."
It appears both sides reached an agreement of sorts in their latest briefs, which lead SCOTUS to believe the appeals court can work out the dispute.
"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," Monday's SCOTUS opinion reads.
"The 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 opinion continued.
The Washington Post pulled together a quick explainer video that sums up today's actions by SCOTUS:
For now, the government will continue providing birth control via their accommodation and religious groups will not be fined for failing to provide birth control coverage to their employees.
Because all but one lower court ruled on the side of the Obama administration, organizations aligned with the federal government regarding birth control anticipate that the Affordable Care Act's original intent, to provide all women with the ability to attain contraception, will prevail.
"Eight of nine Circuit Courts of Appeals have already upheld women's access to birth control no matter where they work," Gretchen Borchelt, vice president for reproductive rights and health at the National Women's Law Center, said. "We are confident that the government's birth control accommodation once again will prevail."
But not all groups on the side of reproductive choice find the SCOTUS decision to be a positive one, with the head of NARAL Pro-Choice America arguing that the opinion only drags things out further, disenfranchising women.
"In punting today, the Supreme court only forces women and families to wait longer to learn who in this country has the 'right' to interfere with a woman's personal health care decisions," said Ilyse Hogue, president of NARAL Pro-Choice America.
Meanwhile, attorneys for the religious groups say today's SCOTUS opinion brings them closer to winning their fight.
"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," Mark Rienzi, lead attorney for the Little Sisters of the Poor, said Monday. "There is still work to be done, but today's decision indicates that we will ultimately prevail in court."