High Court Sidesteps Ruling on Mandate

By Roewe, Brian | National Catholic Reporter, June 3, 2016 | Go to article overview

High Court Sidesteps Ruling on Mandate


Roewe, Brian, National Catholic Reporter


Both sides of the contentious "contraception mandate" debate claimed some win from the U.S. Supreme Court's decision in mid-May to sidestep a ruling in the Zubik v. Burwell case and instead send it back to the lower courts. There, the eight-justice court indicated in its unanimous opinion, a compromise on the issue could well emerge outside its intervention.

In a five-page unsigned order, called a per curiam decision, the Supreme Court vacated May 16 the seven judgments consolidated into Zubik and returned the cases to their respective U.S. Courts of Appeals. Subsequent orders from the court extended the effects of the Zubik order to eight cases it had not yet agreed to hear.

On Zubik, the high court made clear it "expresses no view on the merits of the cases," including whether the federal government, in requiring employers' health insurance plans to provide preventative medical services for women, including contraceptives, infringed upon the religious freedom of faith organizations and institutes that opposed such coverage.

The Supreme Court anticipated that at the appeals level the parties would receive "sufficient time to resolve any outstanding issues between them." All seven of the Zubik-consolidated cases were ruled by four appeals circuits in favor of the federal government. In two separate cases, the 8th Circuit appeals court ruled in favor of the religious organizations.

At eight justices since the February death of Antonin Scalia, the Supreme Court was expected to issue a ruling on the case in June. Following oral arguments in late March, it made the unusual request of supplemental briefings to address whether there was a way to provide the petitioners' employees contraceptive coverage "without any such notice from petitioners."

The briefs from both sides, the court said in its order, "now confirm that such an option is feasible."

"Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court's involvement at this point to resolve them," the justices said.

While the opinion doesn't block the government from ensuring that employees of the petitioning groups can receive contraceptives, the court said, it also found that the litigation essentially serves as a notice of petitioners' objections --substituting for filing a form --and therefore, the government "may not impose taxes or penalties" on them.

It was from those judgments each side largely drew their respective victories. During a briefing the day of the decision, White House Press Secretary Josh Earnest said the Obama administration was "pleased" that the decision allowed women continued access to contraceptive-inclusive health care.

At the same time, Louisville, Ky., Archbishop Joseph Kurtz, president of the U.S. Conference of Catholic Bishops, said the decision "prevents the Administration from issuing crippling fines against those who object."

Kurtz added he was "encouraged" that the Supreme Court wiped clean the previous appeals rulings, saying, "It maintains hope that we might resolve this dispute finally and favorably sometime in the future. …

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