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Supreme Court sends birth control mandate challenge back to lower courts
The government gets to provide contraceptive coverage to employees of religious nonprofits. Those religious objectors won't face heavy fines for refusing to provide coverage. And a potentially deadlocked Supreme Court won't have to settle a contentious battle pitting religious freedom against the Affordable Care Act's birth-control mandate.

All sides appeared to come away with something but not without giving up something after the Supreme Courts unexpected and unanimous order Monday, sending the parties back to the lower courts to hammer out a compromise that they told the justices was possible.

Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, said the courts announcement validates the religious nonprofits argument that the government could provide contraceptive access through a less restrictive means than its current accommodation that resulted in dozens of lawsuits. The Becket Fund represents the Little Sisters of the Poor, a high-profile petitioner in a case consolidating several appeals and identified as Zubik v. Burwell.

"From our point of view, this decision is a win for religious liberty and confirmation of what we've been saying all along," Rienzi said.

However, Robert Tuttle, a professor of law and religion at George Washington University Law School, noted that the government is also a winner because it can still ensure contraceptive coverage is available to employees of religious nonprofits.

If what the (petitioners) objected to was the government using their insurance companies to provide contraceptives to their employees and their dependents, they lost, he said, calling the fallout from the opinion "messy."

But in avoiding a 4-4 tie among the justices, an outcome that many commentators predicted, they left unanswered the question of whether the current ACA accommodation for religious nonprofits violates the Religious Freedom Restoration Act.

"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 government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest," the opinion stated.

The long battle

Monday's Supreme Court announcement is the latest chapter in a long legal saga set in motion by the Affordable Care Act's contraception mandate.

More than 100 lawsuits related to the mandate including 56 filed by religious nonprofits have been filed since 2010, leading the government to revise its original policy three times.

Under the current accommodation for religious nonprofits, employers must notify the government of their objection to birth control. Then, the government works directly with the employer's insurer to provide contraceptive coverage to interested employees.

Some faith-based hospitals, schools and other nonprofits like the Little Sisters continued to object to this process, arguing that they remained complicit in the provision of contraceptives, which they opposed based on religious teachings. Seven cases, including the lawsuit originally filed by the Little Sisters in September 2013, were combined in Zubik v. Burwell and argued before the Supreme Court on March 23.

Petitioners said the current accommodation violates RFRA because there is a less restrictive means to provide birth control to their employees. They requested that religious nonprofits be given the same exemption to the contraception mandate that's offered to houses of worship. The government argued that requiring notification of objecting to provide birth control was not a burden on religious freedom.

Six days after the Supreme Court hearing, the justices made the unusual request that lawyers for both sides submit supplemental briefs responding to a potential adjustment to the current accommodation. The court specifically asked the parties to respond to a proposed compromise in which all religious employers would have to do is request an insurance plan without contraceptive coverage and the government would work with the insurer to fill in the coverage gap.

Both sides appeared open to the compromise in their briefs, and, in Monday's announcement, the Supreme Court appeared ready to hold them to their responses, said Robin Fretwell Wilson, a professor of law and the director of the Family Law and Policy Program at the University of Illinois.

"The court is saying, 'You're going to live by what you said,'" she noted.

Doug Laycock, a distinguished professor of law at the University of Virginia and leading RFRA scholar, doubts that it will be that simple. He wrote in an email that April's supplemental briefs contained many serious disagreements between religious nonprofits and the government that have yet to be worked out.

"I think the lower courts will find those disagreements unbridgeable," he said.

The White House did not issue a formal statement responding to Monday's decision.

Who wins?

Although the Becket Fund and other supporters of the religious nonprofits called Monday's announcement a clear victory, Tuttle described the results as mixed, noting that both sides have backtracked from their original demands.

For example, religious nonprofits initially argued that the government should not be allowed to work through their insurers and should, instead, set up separate, contraceptive-only plans. The court didn't seem to agree, Tuttle noted.

"The court did say there is a different accommodation you can make. In that sense, you could say the (petitioners) won something," he added. "But it's not what they wanted to win" at the start of the case.

A compromise that allows religious nonprofits to request insurance plans without contraceptive coverage instead of notifying the government of their need for an accommodation is still a major victory for the petitioners, Wilson said.

"The court is saying to the government, 'Make sure these religious objectors are really only buying an (insurance) package that doesn't have contraceptive coverage," she said. "The government's concession is more profound."

Justices didn't reflect on how religious nonprofits or the government would receive their opinion, noting that the lower courts and lawyers from both sides still have work to do to find a resolution.

"Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties (in the supplemental briefs), 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" have access to contraceptive coverage, the court's opinion stated.

It's unclear how soon lower courts will respond to the Supreme Court's opinion, and some observers predict that the U.S. Department of Health and Human Services may seek to avoid further battles by adjusting the accommodation.

"Once they do that, we'll see if religious nonprofits try to litigate it again" Tuttle said.
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