WASHINGTON—“The Court expresses no view on the merits of the cases.”
With that, the Supreme Court in Zubik v. Burwell (the official name for the various “Little Sisters of the Poor” cases) punted the latest Supreme Court fight over Obamacare to 2017 or beyond — but did so in a fashion that conservatives can be happy about for now, teeing up yet another issue that will be decided one way or the other by 2016’s presidential election.
The Obama administration adopted a regulation requiring employers to provide healthcare coverage for birth control and abortion-related matters, which the Supreme Court struck down in the Hobby Lobby case as applied to for-profit businesses owned by people with religious beliefs against contraception or abortion. The Court ruled 5-4 that this regulation violates the Religious Freedom Restoration Act (RFRA).
While churches were exempted from this Obamacare administrative rule, religious nonprofit organizations were offered only an “accommodation” that they could sign a form declaring their religious objection, which would transfer their legal obligation to pay for abortion to their secular insurance companies.
These nonprofits—mainly evangelical organizations like East Texas Baptist University and Catholic groups like the Little Sisters of the Poor—objected, saying that signing a form that obligated someone else to pay for abortion still made them complicit in sinful activities.
The Supreme Court consolidated several of these cases to consider whether the Obama administration’s “accommodation” still violates RFRA. Breitbart News previously reported on this case and covered oral arguments live from the courtroom.
Today, the Supreme Court declined to decide the legal merits of these faith-based challenges. The Court’s unanimous per curiam opinion states: “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.”
Those elements—substantially burdening religion, and whether the government’s regulation is the least restrictive means of achieving a compelling public interest—are the three parts of a RFRA challenge.
After argument, the Court requested supplemental beliefs to see if the parties may be able to find a compromise. In today’s short five-page opinion, the Court decided, “Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.”
All parties—both the religious groups and the Obama administration—agreed in their supplemental briefs that it might be feasible to create a new Obamacare procedure in which “contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.”
Specifically, the government’s supplemental brief admitted that “for employers with insured plans,” these 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.”
If the government would provide abortion-related products and services directly to employees without forcing faith-based employers to do anything, then the government would no longer be burdening those employers’ religious faith.
With today’s decision, the High Court vacated the lower courts’ decisions against these faith-based employers (striking those decisions from the books), sending all these cases back down to the various federal courts of appeals across the country for new briefs and arguments on the possible compromises. The justices could then decide at a later time whether to review any of the new decisions from those lower courts.
There was one small victory today with which conservatives and faith-based employers should be happy. The Court ordered the Obama administration not to impose fines on all the faith-based employers involved in these challenges up to this point, and while the litigation is ongoing. At minimum, this alleviates millions of dollars in crushing penalties, at least until the situation is finally resolved one way or the other.
But two liberal justices put a shot over the bow of the Little Sisters and other religious employers, warning them that they did not win their case today, and signaling that these justices were more than willing to rule against the faith-based employers if and when the time comes. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote:
The opinion does not … endorse the petitioners’ position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a separate policy, with a separate enrollment process. Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation.
It is not clear if the death of Justice Antonin Scalia changed the outcome of this case, but it is possible. The challengers sought a ruling that the “accommodation” is illegal under RFRA. It is possible (though unknown) that there were originally five votes to strike down the accommodation, but that without Scalia’s vote the Court could only issue a 4-4 tie decision in the case, leaving in place the lower-court rulings against faith-based employers.
Top Supreme Court lawyer Paul Clement—who argued part of this case—immediately after argument thought it likely that the justices would try to find some common ground to avoid a tie in this case.
Decisions from the lower courts should come late in 2016 or even in 2017, leaving any new arguments before the High Court unlikely to occur before fall 2017.
One thing that is unlikely to come from this case is an ultimate Supreme Court victory for the religious challengers to Obamacare. If Donald Trump wins the White House, it would likely not even matter in this case if he makes good on his pledge to appoint conservatives to the Supreme Court. Even if Trump doesn’t have the votes in Congress to repeal the Obamacare law, this abortion rule and the “accommodation” were created by administrative rules, and can be abolished by President Trump without congressional action. If so, this case will become moot, and never return to the Supreme Court.
If, on the other hand, Hillary Clinton wins, and fills the Supreme Court seat left vacant by Scalia, then conservatives may find out whether any of the liberal justices who did not join Sotomayor’s separate opinion were willing to side with the faith-based employers, or instead if the heavy hand of the federal government will force these employers to abandon all their employees’ healthcare to avoid being bankrupted by Obamacare’s massive penalties.
Ultimately, the fate of the Little Sisters likely will be decided by the 2016 presidential election, not the Supreme Court.
Ken Klukowski is legal editor for Breitbart News. Follow him on Twitter @kenklukowski.
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