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U.S. Supreme Court sends Zubik case back to lower courts

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U.S. Supreme Court sends Zubik case back to lower courts

(CNS) — The U.S. Supreme Court May 16 sent the Zubik v. Burwell case, which
challenges the Affordable Care Act’s contraceptive requirement for employers,
back to the lower courts.

The justices’
unanimous decision, explained in a nine-page unsigned opinion, was based on the
information that both sides submitted a week after oral arguments were heard in
the case about how and if contraceptive insurance coverage could be obtained by
employees through their insurance companies without directly involving
religious employers who object to this coverage.

The court
made clear that it is not expressing an opinion on the merits of the cases that
are challenging aspects of the federal government’s health legislation and it
also was not ruling on the issue of a potential violation of religious freedom.

Because of
the “gravity of the dispute and the substantial clarification and
refinement in the positions of the parties,” the court stated that
religious employers and the government should be “afforded 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

The court
stressed that this approach is “more suitable” than addressing the
refined positions submitted by both sides and added that “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.”

Five appeals
courts had ruled in favor of the contraceptive mandate and one had ruled
against it. But now, equipped with the new information both sides submitted to
the Supreme Court, the lower courts have been ordered to review these cases
once more.

Justice Sonia
Sotomayor and Justice Ruth Bader Ginsburg wrote separately to stress that the
court had not decided any of the legal questions in the cases and cautioned the
lower courts not to read anything into the new opinion.

“This is
a game-changer,” said Mark Rienzi, lead attorney for the Becket Fund for
Religious Liberty, which represents the Little Sisters of the Poor, one of the
group’s challenging the federal contraceptive mandate.

He said the opinion
reflects that the court has “accepted the government’s concession”
that it can provide contraceptives to women “without using the Little

He also was
pleased the court was forbidding the government “from fining the Little
Sisters even though they are refusing to bow to the government’s will. It is
only a matter of time before the lower courts make this victory
permanent,” he said in a May 16 statement.

Cardinal Donald W. Wuerl had a more nuanced look at the court’s opinion, saying
he was pleased that it offered a path forward, but he also acknowledged that
“this struggle will continue.”

Washington Archdiocese is one of several plaintiffs in this case.

cardinal said the archdiocese will continue its work to “serve others in education,
health care, social services, and outreach to the poor and those most in need.
We will continue to do that because we are resolute that it is precisely by
being true to our Catholic identity in what we proclaim and in what we do that
we can continue to help realize a truly good and just society.”

Bishop David A. Zubik of Pittsburgh, for whom the consolidated
group of cases is named, said in a statement that the Pittsburgh Diocese was grateful
the justices “recognize our willingness to reach a resolution that allows
us to abide by our faith and the government to achieve its goals.”

have already stated our willingness to come to such an agreement and we hope
that the government shares that willingness,” he added.

“Burwell” in the case name is for Sylvia Mathews Burwell, who is secretary of the Department of Health and Human Services.

Father Frank Pavone, national
director of Priests for Life, another of the plaintiffs, said he and other in his organization are “studying the implications of this
development and are encouraged by it.”

He said the group, in response to the court’s request for more
information, showed that there is “a way for the government to pursue its
objectives without burdening our freedom of religion. We are ready to present
these new arguments in the court of appeals.”

This is not
the first time the court has sent a case back to the lower courts in light of
new developments.

The opinion
stressed that sending the case back to lower courts should not affect the
government from making sure women covered by petitioners’ health plans obtain
FDA-approved contraceptives, but it also means the government “may not
impose taxes or penalties on petitioners for failure to provide the relevant
notice” stating their objection to the coverage.

The court’s
opinion “can be seen as both a reset and a pause,” said Richard
Garnett, a University of Notre Dame law professor, who said the decision
doesn’t end the argument but it “wipes away” several lower court
opinions that had ruled against the religious challengers. He said the court’s
action also delays a further ruling until a new justice is on the court.

Garnett said
if Justice Antonin Scalia were still on the bench, a majority would have likely
ruled in favor of the Little Sisters of the Poor and the other challengers.

“The government’s
admissions in oral argument and in the supplemental briefs appear to have made
it possible for the justices to avoid a confusing and inefficient 4-4 tie and
for all eight to agree on this intermediate step,” he added.

Legal analyst
Lyle Denniston, who writes for, a blog on the Supreme Court,
similarly pointed out that the court’s attempt at compromise shows how it is
“having to adjust its actions to deal with the fact that it is one justice
short of its normal membership.”

He also noted that
varied reactions to the court’s opinion shows that it “may take some time
for observers to sort out just what the court has done and its

arguments for Zubik v. Burwell were heard March 23 and the court asked for
additional information March 29. The case involves the Little Sisters of the
Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, and
the Archdiocese of Washington and other religious groups challenging the
Affordable Care Act’s mandate that most religious and other employers must
cover contraceptives, sterilization and abortifacients through
employer-provided health insurance.

These groups,
who do not fit the narrow exemption to the contraceptive mandate given to
churches, argued that providing contraceptive coverage even indirectly through
a third party, as the Obama administration allows through what it calls an
accommodation, still violates their religious beliefs.

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Follow Zimmermann on
Twitter: @carolmaczim


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