Zubik v. Burwell Sent Back to Lower Courts

Today the Supreme Court issued a per curiam opinion in Zubik v. Burwell that is perhaps more significant for what it does not say rather than what it does.

The Justices were asked to consider consolidated cases from the Third, Fifth, Tenth and D.C. Circuits challenging federal regulations that provide an accommodation to religious non-profits allowing them to opt out of providing contraceptive coverage in their employee health plans which is recognized as required preventative-care coverage under the Affordable Care Act.  Under the regulations, petitioners can opt out of providing coverage by submitting a form stating that they object to providing contraceptive coverage on religious grounds.  Upon receipt of the notice, the petitioner's insurer would be required to provide contraceptive coverage at no cost to the employer. However, petitioners argue that submitting the notice substantially burdens their exercise of religion in violation of the Religious Freedom Restoration Act.

Instead of deciding the RFRA claim, the Court vacated the judgments and remanded the cases back to the Circuit courts to allow the parties to develop a solution 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.'"  After hearing oral argument, the Court asked the parties to submit supplemental briefs to address whether contraceptive coverage could be provided to petitioners' employees through their insurance companies without any notice from petitioners. According to the Court's opinion, the petitioners and Government have indicated that "such an option is feasible."

The opinion allows the Court to avoid deciding the case, and Justice Sotomayor emphasized that lower courts should not construe the per curiam opinion as an indication of where the Court stands on the merits of the claims. In a separate concurrence, she writes "[t]he opinion does not . . . endorse the petitioners' position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a 'separate policy, with a separate enrollment policy'" and that the "Court of Appeals remains free to reach the same conclusion or a different one on each of the questions presented by these cases."  

As the parties try to seek agreement, she noted that it would be unacceptable for the Petitioners to insist that contraception be provided in a completely separate plan, noting that such contraceptive-only policies do not currently exist and that the Government laid out legal and practical obstacles to their creation.  Further, forcing women to obtain a separate policy "would leave in limbo all of the women now guaranteed seamless preventative-care coverage under the Affordable Care Act."