Justice Anthony Kennedy's name is not on the unanimous, unsigned opinion the court issued Monday in a case that pitted seamless coverage of women's contraception against the religious objections of their employers.
And yet, in deciding not to decide between the two and tossing it off to the lower courts to the right balance, the opinion tells the tale of Kennedy's own agonized indecision, particularly when it comes to women's reproductive health. (He has shown little such torment in recent decisions on the rights of same-sex couples.)
This is the court's second bite at the Affordable Care Act's preventive coverage requirement, which added contraception to a list of services and devices that had to be covered fully by all plans without a co-pay. Two years ago, in Burwell v. Hobby Lobby, the court sided with for-profit corporations like the craft store chain, which said covering contraception on their insurance plan violated the owners' religious beliefs.
In that case, Kennedy was the pivotal fifth vote for the corporations and wrote a separate concurrence to emphasize just how conflicted he was. On the one hand, he said, the free exercise of religion was about more than "just freedom of belief ... It means, too, the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic and economic life of our larger community." On the other, he wrote, "it is important to confirm" that fully covering contraception for women "furthers a legitimate and compelling interest in the health of female employees." In other words, he was willing to go further than the other Republican-appointed justices in the majority and say that it mattered that women had access to this coverage.
Luckily, Kennedy wrote then, the government has another way to please everyone: "There is an existing, recognized, workable and already implemented framework to provide coverage," he explained. "The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the government’s interest but does not impinge on the plaintiffs’ religious beliefs."
What "accommodation" was that? The very one that Kennedy refused to endorse in Monday's Zubik v. Burwell opinion. That's the same plan that was offered to nonprofit organizations — schools, hospitals, charities — that those groups had already objected to in court, even as the court heard Hobby Lobby. The same plan on which Kennedy could have formed a five-justice majority, by joining the four Democratic appointees, to say it sufficiently respected both religious liberty and women's health.
That's not what he did. Instead, at oral argument in March, Kennedy seemed to see both sides again. He was troubled by claims from the nonprofits that even if they did not have to pay for the contraceptive coverage, the Obama administration's plan still "hijacked" their insurance plan by dealing with their insurer directly. But he also questioned their claim that because the Obama administration had allowed churches to opt out entirely, the nonprofits who employ people of all faiths should be able to as well. "It's going to be very difficult for this court to write an opinion which says that once you have a church organization, you have to treat a religious university the same," Kennedy said.
There is another way, the court wrote today in its unsigned orders, to satisfy all the parties, though it didn't specify what that way could be. By sending the case back to the lower courts, the court wrote, everyone will 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 coverage.'"
Whether such an approach actually exists remains to be seen. Two of the court's fiercest defenders of women's reproductive rights, Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg, wrote separately to make clear what they don't think the "compromise" should be — anything that means women have to jump through extra hoops to get the coverage other employees are getting seamlessly.
As for Kennedy, he wrote no separate opinion. The court still has to decide another pivotal case concerning women's reproduction, Whole Woman's Health v. Hellerstedt, challenging a Texas law that purports to protect women's health with regulations that have already shut down dozens of abortion clinics. Kennedy is expected to determine the outcome of that case, too. At oral argument, Kennedy asked about sending the case back to the lower courts for more fact finding. That doesn't mean it will happen, but his comments did show that Kennedy was at least evaluating a way out of a politically incendiary case. It was Kennedy that helped craft the 1992 compromise that kept abortion technically legal but has allowed states to restrict it to protect fetal life. What that means in practice, the court has yet to really say.
In the meantime, each side of these debates is undoubtedly wishing for a ninth justice who doesn't leave his or her causes to the unpredictable vagaries of Kennedy. That so much is at stake explains why the court, without another, definitive vote, has ground to a halt.