Supreme Court ruling should clear the way to free birth control for women with religious employers

Reporting from Washington —  An evenly divided Supreme Court skirted the major legal questions arising from a dispute over President Obama’s healthcare program and instead announced a compromise Monday designed to clear the way for women working for religious organizations to receive the free birth control promised under the Affordable Care Act.

In a short, unanimous decision, the justices said that the Catholic charities who filed the suits and the Obama administration – at the high court’s strong urging -- had agreed in recent weeks that the female workers may “receive cost-free contraceptive coverage” without infringing on the religious rights of the church-based employers.

Based on that understanding, the justices said they saw no need to rule now on the broader legal issues, including whether the so-called contraceptives mandate violated the charities’ religious liberties or whether the government has a compelling interest in requiring contraceptives coverage for female employees.

The outcome appears to resolve, at least for now, the long-running battle between the Catholic Church hierarchy and the Obama administration.

It also pushes aside an intense, ideological clash that a divided, eight-member high court cannot resolve.

Ever since the February death of Justice Antonin Scalia, the Supreme Court has been evenly split between four Republican appointees and four Democratic appointees, resulting in several deadlocks this term. Monday’s compromise essentially punts the larger legal questions, though the issue may eventually end up back at the Supreme Court in the future.

During an interview Monday with BuzzFeed, Obama said the ruling was a win for women.

“The practical effect is right now that women will still continue to be able to get contraception if they are getting health insurance,” he said. “And we are properly accommodating religious institutions who have objections to contraception.”

He said he wouldn’t speculate on why the high court did not tackle the larger questions, but added, “My suspicion is if we had nine Supreme Court justices instead of eight, we would have had a different outcome.”

Obama has been pushing the Republican-controlled Senate to confirm his Supreme Court pick, Merrick Garland, but GOP lawmakers say the decision should not be made during an election year.

Under Monday’s decision, at least a dozen lawsuits challenging the administration’s policy will be sent back to lower courts to work out the details of providing the required coverage under the proposed new compromise. Not surprisingly, the court’s unsigned three-page statement was interpreted differently by the parties.

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“This outcome is good for women,” said Gretchen Borchelt, vice president for reproductive rights at the National Women’s Law Center. “The government can now move forward to assure women have seamless access to the contraceptive coverage. We’re not happy there will still be more litigation, but this should pave the way for women to get full coverage.”

The Becket Fund for Religious Liberty, which had sued on behalf of the Little Sisters of the Poor and several evangelical colleges and charities, also saw the decision as a victory.

“The Little Sisters won, but what this unanimous ruling shows is that there was never a need for anyone to lose,” said Mark Rienzi, a lawyer for Becket. “The government will be able to meet its goal of providing these free services to women who want them, and not just for those with religious plans.”

From the start, the administration had agreed that churches and other houses of worship were exempt from the requirements of the federal law and its promise of the full range of contraceptives. It also adopted an “accommodation” that said church-affiliated employers, including colleges and charities, need not pay for this coverage if they had religious objections to doing so. Their insurers could be called upon to provide the contraceptives at no cost to the employer or the employee.

But that did not resolve the matter because lawyers for some Catholic charities and colleges said their officials objected to signing the required notification of their objection to the government or their insurers, which would trigger the insurers to provide the coverage. Some religious employers argued even the notification would make them “complicit in sin,” because they consider some of required contraceptives to cause early abortions.

For their part, Obama’s attorneys held to the view that these female employees, many of whom did not share the faith of their employers, were entitled to the full insurance coverage promised by the law.

Most of the U.S. appeals courts sided with the administration, ruling that this modified plan did not put a “substantial burden” on religious freedom. The 8th Circuit in St. Louis ruled in favor of the church-based employers.

The Supreme Court agreed late last year to resolve the lingering legal clash and rule on whether this required coverage put an unfair burden on the religious liberty of their church-based employers, but Scalia’s death prompted the court to push for a compromise. The justices issued an unusual request for both sides to consider whether the insurance coverage could be provided in a way that did not directly involve the church-based employers.

Both sides filed briefs that essentially accepted this idea. And on Monday, Chief Justice John G. Roberts Jr. read a three-page statement in court announcing what sounded like a settlement.

The Catholic charities and the evangelical colleges that sued the government “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 contraceptives from the same insurance company,” he said. “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.”\

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Since both sides “now confirm that such an option is feasible,” the court need not rule on the legal issues raised in the combined cases, known as Zubik vs. Burwell.

“Nothing in this opinion…is to affect the ability of the government to ensure that women covered by [church-based employers’] health plans obtain, without cost, the full range of FDA-approved contraceptives,” Roberts added.

At the same time, the court said that the government may not impose penalties for non-compliance on church-based employers, pending the outcome of the lower courts’ review.

Justices Sonia Sotomayor and Ruth Bader Ginsburg said in a separate opinion that they will watch to see that the contraceptive coverage is provided as promised. They stressed that employers may not opt for “a separate contraceptive-only policy” that could that could prove cumbersome for women, their doctors and their insurers.

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UPDATES:

2:52 p.m.: This article was updated with more reaction and analysis.

8:30 a.m.: This article was updated with more background and quotes from the opinion.