Supreme Court passes on ruling in Little Sisters case

Printed from:

WASHINGTON, D.C. – The Supreme Court today punted the question of whether the government can compel nuns, priests, and faith-based schools to provide employees with contraceptive coverage, even if they are bound by religious teachings that forbid certain forms of birth control.

In sending a group of combined cases back to the lower courts and strongly urging the parties to come up with a compromise, the justices avoided having to decide a potentially explosive issue during a presidential election year and at a time when the Court is operating with only eight of it’s nine justices.

The cases, consolidated as Zubik v. Burwell, were brought by Little Sisters of the Poor, Priests for Life, and several faith-based universities seeking an exemption from the contraceptive mandate of the Affordable Care Act (also known as “Obamacare”). In a unanimous per curiam opinion, the Court sent the cases back to the Third, Fifth, Tenth, and D.C. Circuit Courts of Appeal, asking that the parties be given “sufficient time to resolve any outstanding issues between them.”

Justices Ruth Bader Ginsburg and Sonia Sotomayor wrote separately to emphasize that the Court made no determination as to whether the mandate violates the Religious Freedom Restoration Act, as claimed by petitioners.

The cases challenged a regulation, issued by the Department of Health and Human Services, requiring that employer health plans provide coverage for contraceptives, sterilizations and some abortifacients.  Little Sisters of the Poor had argued that some of the drugs and services that the law covers are not permissible under the teachings of the Roman Catholic church.

HHS offered an accommodation whereby religious organizations would not have to pay for coverage of contraception or abortion-inducing drugs themselves but would instead be required to authorize the insurer or health plan administrator to provide separate coverage. Faith-based groups rejected this accommodation, however, claiming that even authorizing the use of religiously prohibited contraceptives violates their faith.

At oral arguments in March, the Court appeared to be deadlocked 4-4. The Court has been operating with only eight members, rather than the usual nine, since Justice Antonin Scalia died unexpectedly in February. Less than a week after the Court heard arguments in the combined cases, the justices took the unusual step of asking for additional briefing, telling both sides to come up with alternative ways to avoid forcing faith-based groups to violate their religious beliefs.

After reading those briefs, the Court on Monday said that, given the “substantial clarification and refinement in the positions of the parties,” a compromise seems possible.

The approach drew sharp criticism from the Secular Coalition for America, which issued a statement criticizing the Court for “abdicating its responsibility to protect the constitutional separation of church and state.”

“We cannot compromise on the First Amendment of the Constitution, yet that is precisely what the Supreme Court is asking the lower courts to do,” said Larry Decker, Executive Director of the group.

“By kicking the can down the road, the Supreme Court has jeopardized women’s healthcare for the sake of religious privilege,” Decker said.

“We are hopeful that the lower courts will issue a firm decision protecting reproductive rights and upholding the true definition of religious freedom guaranteed by the First Amendment.”

Under the decision, petitioners will not face fines for failing to provide contraception coverage for now.  Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead Becket attorney for the Little Sisters of the Poor, applauded the decision.

“We are very encouraged by the Court’s decision,” said Rienzi.

“It is crucial that the Justices unanimously ordered the government not to impose these fines.  There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”

This article has been updated to include a response from the Secular Coalition for America.