The 4-4 split on the Supreme Court may have proven more productive than critics of the GOP’s refusal to consider Merrick Garland’s nomination have assumed. After hearing arguments on Zubik v Burwell, a key case in the fight over the ObamaCare contraception mandate and religious liberty, the court has kicked the case back down the chain for reconsideration — and for more compromise from both parties. The unanimous decision disavows any conclusion on either merits, standing, or whether the law addresses a compelling state interest:
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 case involved a number complaints from religious-based employers against HHS, including the most infamous involving the Little Sisters of the Poor. Those desiring a decision in favor of clear protection for religious liberty will no doubt be a bit disappointed that the case has not been resolved after several years of fighting. However, the reasoning applied to this punt does carry an implicit rebuke to the Obama administration, which had to move significantly away from its argument that the latest version of its waiver was the “least restrictive” measure, and hints that the plaintiffs’ solution appears reasonable:
Following oral argument, the Court requested supplemental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. 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. Supplemental Brief for Petitioners 4. 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.” …
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.” Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.
In other words, don’t come back any time soon, y’all. The plaintiffs in all of these cases have said all along that their objection came from the demand by HHS that they had to sign a certification to allow coverage of contraception, as that represented active participation in actions their religious beliefs consider sinful. Every iteration of HHS’ supposed compromises involved some sort of involvement from the employers in those transactions, which is why they refused to back down — and why these cases have dragged on for years.
HHS and the Obama administration didn’t offer this kind of compromise until the Supreme Court’s oral arguments seemed to suggest that the court took a dim view of their argument. It shows that the federal government’s desire all along was to wear down their critics through expensive and lengthy litigation. When that strategy ran out, the Obama administration suddenly got flexible.
So this isn’t a ruling in favor of the plaintiffs as much as it is a signal that the road has run out for pushing nuns, priests, and ministers to pay for contraception, or to certify contraception coverage for those they employ. Given the non-issue that access to contraception is in the US, a rational decision on the lack of compelling interest by the Supreme Court would have been the best outcome. Considering the status of the court today, this may have been the best realistic outcome.