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SCOTUS sends Obamacare contraception case back to lower courts

"The Court expresses no view on the merits of the cases," the justices wrote in their opinion.

The Supreme Court on Monday sent a case dealing with religious exemptions in Obamacare contraception coverage back to lower courts in an attempt to get the sides to figure out a compromise. The unsigned unanimous order, though not technically a tie, suggested the court could not reach a more definitive majority without a ninth justice. 

“The Court expresses no view on the merits of the cases,” the justices wrote in their opinion in Zubik v. Burwell.

At issue was what the Obama administration called an “accommodation” for religiously-affiliated nonprofits such as hospitals, universities and charities, who could fill out a form to opt out of paying for the coverage. The plaintiffs in the suit, citing the federal Religious Freedom Restoration Act, said that plan still improperly involved them in coverage that violated their religious beliefs.

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Just last month, the parties in the case submitted an unusual second round of briefs at the request of the court, which said it needed more information about a possible compromise. In its opinion Monday, the court said that middle ground would have to be worked out by a lower court.

“The parties on remand 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 coverage,’” the justices wrote.

Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, wrote a separate concurrence emphasizing they joined the opinion because it did not decide the case.

"Today’s opinion does only what it says it does: ‘afford[s] an opportunity’ for the parties and Courts of Appeals to reconsider the parties’ arguments in light of petitioners’ new articulation of their religious objection and the Government’s clarification about what the existing regulations accomplish, how they might be amended, and what such an amendment would sacrifice," they wrote.

The two female justices also rejected what the religious groups posited as an easy compromise, the creation of a separate, contraception-only plan. “Requiring that women affirmatively opt into such coverage would ‘impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate,” Sotomayor and Ginsburg wrote.

The case could end up back at the Supreme Court, if the lower courts are still split in the new proceedings and one or the other parties appeals. For now, with a seat left vacant by the death of Justice Antonin Scalia and Republicans refusing to even hold a hearing on President Obama’s pick to succeed him, the future is uncertain.

“In normal circumstances, this is something that would be put over for reargument, if you know you have a ninth justice in the fall,” said Gregory Lipper, senior litigation counsel at Americans United for Separation of Church and State, which filed a brief in support of the government’s position. “I think the real way to make sense of this is that they needed a ninth vote to decide.”

Attorneys for the religious groups declared a temporary victory. The Alliance Defending Freedom, which represents two of the plaintiffs, Southern Nazarene University and Geneva College, said in a statement, “The Supreme Court was right to protect the Christian colleges and other groups from not having to pay fines or fill out forms authorizing the objectionable coverage.”

Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represents another plaintiff, the Little Sisters of the Poor, said, “It is crucial that the Justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious—the Little Sisters respectfully object. There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”             

That’s because the court seems to leave in place the temporary orders that prevents the government from fully enforcing the regulation, including financial penalties.

Supporters of the contraceptive coverage provision, which requires that birth control be covered fully and without a co-pay as part of a broader list of preventive care coverage, expressed disappointment that the court did not offer a more definitive ruling.

“This should have been open and shut,” said Brigitte Amiri, senior staff attorney at the ACLU's Reproductive Freedom Project. “Women should have won today conclusively. “