Last Call For Eight Is Enough, Con't

The Supreme Court unexpectedly dropped a decision on Obamacare's birth control coverage mandate on Monday. Well, they sort of dropped a decision, which really wasn't a decision.

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. 

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.

So the case is going back down to a lower court with instructions to work it out, which means it was a 4-4 tie and both sides agreed to punt for now.

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.

I would have to say that my gut is telling me this decision was a notice to the GOP Senate to get on with the replacement of Justice Scalia already, as the decision is very specific in saying that the court had no opinion yet and wanted people to find a compromise already, hint hint.

Besides, once Scalia's seat is filled, you'd better believe that any 4-4 tie cases of this magnitude would end up right back before the court again down the road, so the court is just trying to speed all this along so they can get back to work.