What to Expect When You’re Expecting at Least Another Year of Contraception Litigation

By Gregory M. Lipper

In a unanimous, unsigned order hailed as “an almost hilariously brazen punt,” the Supreme Court sent Zubik v. Burwell and the other contraception cases back to the lower courts for further consideration. The order states that, in light of the supplemental briefs submitted at the Court’s request, the parties should have “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.’”

That, of course, describes the current accommodation, which the Court in 2014 touted as a compromise that protected women’s interests while relieving religious objectors’ of any burdens created by the previous requirement that they provide and pay for the coverage themselves. But the Court, likely split 4–4 on whether even that accommodation complies with the Religious Freedom Restoration Act, wants the parties to see if they can compromise further without subjecting women to second-class care.

These cases will almost certainly return to the Supreme Court, which may or may not have nine members by that time. But in the meantime, things are up in the air—especially for affected women:

1. The Court decided—nothing. Although objectors’ lawyers claimed victory, even the most nimble of advocates would struggle to identify an actual victory from an order that “expresses no view on the merits of the cases.” Lest any misunderstanding persist, the Court reiterated that it took no position on any of the underlying legal questions:

In particular, the court does not decide [1] whether petitioners’ religious exercise has been substantially burdened, [2] whether the Government has a compelling interest, or [3] whether the current regulations are the least restrictive means of serving that interest.

Those questions will be decided again by the Courts of Appeals, all but one of which has already ruled against the objectors. A victory this is not.

2. Read the concurring opinion. Although the Supreme Court avoided deciding anything, Justice Sotomayor wrote a concurring opinion (joined by Justice Ginsburg) that made several key points:

First, the lower courts should listen to the Supreme Court when it says that it’s not deciding the merits: “Lower courts … should not construe [today’s order or the previous orders] as signals of where this Court stands.” In particular, Justice Sotomayor chided the 8th Circuit for ignoring the Court’s previous disclaimers.

Second, the mythical contraception-only policies that the objectors propose would fail to supply women with adequate access to contraceptive coverage. According to the concurrence, “[r]equiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act.” And “requiring that women affirmatively opt into such coverage would ‘impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.’”

Finally, the Courts of Appeals remain free to uphold the accommodation outright. “As enlightened by the parties’ new submissions,” Justice Sotomayor explained, “the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.” And with eight of the nine Courts of Appeals having concluded that the accommodation doesn’t substantially burden the objectors’ religious exercise, the parties’ supplemental briefs—which go to the question of less-restrictive alternatives, not substantial burden—may not change the result.

3. Women stay in limbo. Whatever the ultimate result, tens of thousands of women face another limbo of undetermined length, featuring several months or more of litigation in the lower courts plus the inevitable appeals to the U.S. Supreme Court. These delays will harm most of the affected women, as the government explained in its supplemental brief:

In these cases alone, petitioners seek relief on behalf of organizations with more than 30,000 employees and students. Because of injunctions and other interim relief entered by the lower courts, none of the affected women are presently receiving the full and equal health coverage to which they are statutorily entitled. The dozens of other pending cases include employers that provide coverage to tens of thousands of additional women. In all but a few of those cases, the affected women likewise are not receiving contraceptive coverage because the accommodation regulations have been enjoined pending this Court’s resolution of the issue—even though eight courts of appeals have now held that the accommodation is consistent with RFRA.

Attempting to ensure that affected women received contraceptive coverage without further delay, the government “request[ed] that the Court definitively resolve petitioners’ challenges to the accommodation.” The Court did the opposite. And even those women, such as the students and staff at the University of Notre Dame, who currently receive coverage through the accommodation will have to wait a year or more to learn whether they’ll get to keep it for good.

4. What happens to affected women in the meantime? The prognosis for affected women in the meantime is unclear. On the one hand, the Court said that the while the lower courts are reconsidering the cases, the government could not require the objectors to notify the government in writing that they are opting out of providing contraceptive coverage—as the accommodation would otherwise require—because the objectors’ lawsuits have notified the government of their objections. On the other hand, “[n]othing in this opinion, or in the opinions or orders of the courts below, ‘precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage’ going forward.” Perhaps, then, the government has the information and authority that it needs to implement the existing accommodation?

Not so fast: The Court has used this language before, in its 2014 interim order in Wheaton College and again in its 2015 interim order in Zubik. Yet the government, for reasons that are unclear, does not appear to have implemented the accommodation even as to those objectors. Whether the government can do so now remains to be seen—and will determine whether, while in limbo, most of the affected women will receive the contraceptive coverage that they are guaranteed by law.

5. Don’t hold your breath for a compromise. Though seemingly optimistic that the parties could resolve their differences, the Court acknowledged that “there may still be areas of disagreement between the parties on issues of implementation” and that “the importance of those areas of potential concern is uncertain.”

Indeed, the supplemental briefs suggest that these areas of disagreement will overwhelm any common ground. In particular, the objectors’ supplemental briefs illustrate that they oppose any mechanism that would provide women with contraceptive coverage that they can obtain easily and use with their existing network of doctors. Instead, the objectors suggested that the government can arrange for coverage through “the Exchanges, Title X, a contract with one meta-insurer, or through truly independent arrangements with petitioners’ commercial insurers.”

The first three options are anything but seamless and would make contraceptive coverage harder to obtain and less useful once obtained. And the “truly independent arrangements”—as the objectors define them—would likewise be harder to enroll in and sever women’s reproductive care from the rest of their care. None of the objectors’ proposals, then, would enable women to receive the “full and equal health coverage, including contraceptive coverage,” that the Court contemplates and the law requires.

So the Courts of Appeals will inevitably need to decide these cases again. And then the cases will return to the Surpeme Court…

6. The Supreme Court really needs a ninth justice. In normal times, a deadlocked but short-staffed Court would hold the case for reargument in the next term, when the Court would be back at full strength. But normal times these are not: Nobody has any idea when the ninth justice will be confirmed. And so the Court stalled for time, sending the cases to the lower courts for lengthy proceedings that—they hope—will continue until the Court is fully stocked.

Leaving nothing to chance, the Court urged the lower courts to take their time: “We anticipate that the Courts of Appeal will allow the parties sufficient time to resolve any outstanding issues between them.” In other words, “We don’t want the case back until we have nine justices, which might be a long time from now.”

7. At the Supreme Court, contraception is different. I’ve said it before and I’ll say it again: If these cases concerned religious objections to virtually any type of medical care other than contraception—vaccines, blood transfusions, gelatin-covered pills, you name it—they’d have been laughed out of the Supreme Court. But because they involve reproductive care, we’re now in the fourth year of litigation, with no end in sight, even though the objectors need not pay for or otherwise provide contraceptive coverage. Despite the Affordable Care Act’s explicit attempt to ensure that women’s healthcare is no longer treated as second-class care, we have a long way to go.

Greg Lipper (@theglipper) is Senior Litigation Counsel at Americans United for Separation of Church and State.