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Supreme Court punts on the latest Obamacare birth control challenge

Activists Rally Outside Supreme Court Hearing On Religious Non-Profits Abiding To ACA
The Little Sisters of the Poor, the highest-profile challenger in this case.
Photo by Mark Wilson/Getty Images

The Supreme Court announced Monday that it will essentially punt on Zubik v. Burwell, the latest challenge to the Affordable Care Act's birth control mandate, by sending the case back to lower courts.

After oral arguments, the Court had asked both the religious nonprofit petitioners and the federal government to address "whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners." In other words, can women employed by religious nonprofits still get seamless contraception coverage, even if their bosses don't want to take any steps to notify the government that extra coverage is needed?

According to the unanimous ruling, both the government and the petitioners confirmed in supplemental briefings that this is "feasible." So now they get to work out the details of this new arrangement, whatever it is.

"The Court has handed down a ruling that says to the government, there are ways to accommodate the religious convictions of the Little Sisters of the Poor, and Baptist organizations, and other Christian groups, without sacrificing their consciences," said Russell Moore, president of the Ethics and Religious Liberty Commission, the public-policy arm of the Southern Baptist Convention. "In some ways, this is something we ought to celebrate."

The Court took no position on the merits of the case — whether the Obama administration's accommodation "substantially burdens" the religious freedom of the petitioners.

So while the result is that the Obama administration will probably have to adjust its religious exemption to the birth control benefit, it would be overstating to call this a ruling in "favor" of the religious nonprofits.

That doesn't mean pro-choice groups are happy about the ruling.

"It is extremely disappointing that the Court has chosen not to side with the conscience-based decision making of workers," said Jon O'Brien, president of Catholics for Choice, in a statement. O'Brien also blamed the impasse on the Obama administration's "lack of conviction and refusal to stand up for the rights of individuals in an effort to appease faith-based big business."

"The court's decision is premised on both parties' inclination to 'compromise,' which is not something we have seen from the anti-choice movement in a very long time," said Ilyse Hogue, president of NARAL Pro-Choice America, in a statement.

What is this case about?

You might think of Zubik as the sequel to Hobby Lobby. That well-known case dealt with whether for-profit corporations, for religious reasons, can deny their employees the no-cost birth control coverage that the Affordable Care Act otherwise guarantees.

This case, however, asks whether religious nonprofits can do the same. The Obama administration has already offered these nonprofits an exception that still lets their employees get coverage — the religious nonprofit sends in a two-page form informing the government of their objection, and then they don't have to be directly involved in providing birth control coverage.

But the nuns who run the Little Sisters of the Poor network of nursing homes believe that this exception is still asking too much, and that it effectively makes them complicit in something they have strong religious objections to.

This case was a consolidation of seven cases. In all seven, courts ruled in the Obama administration's favor and found that the exception does not substantially burden the plaintiffs' religious freedom. One other court, the Eight Circuit Court of Appeals, ruled against the administration.

Since "religious nonprofits" include things like Catholic universities and hospitals, which employ a lot of people, the ruling could affect birth control coverage for hundreds of thousands of women.