By Matt Hadro
Washington D.C., May 18, 2016 / 16:11 pm
While both sides say they are happy with the Supreme Court decision on the Little Sisters' case, the long-term outcome remains to be seen, legal experts said.
Dr. Marc DeGirolami of St. John's University School of Law said that "there will very likely be another round of litigation" in Zubik v. Burwell, "unless the parties can come to an agreement."
And an agreement might not happen, Dr. Helen Alvare of George Mason University Law School said, because the government's lawyers "were not at all cooperative" when asked to propose such a solution.
On Monday, the Supreme Court sent the current HHS mandate cases of religious non-profits – bundled under the title Zubik v. Burwell – back to the lower courts where they had originated and vacated the previous circuit court rulings in those cases. The Supreme Court emphasized in its decision that it was not issuing a ruling on the merits of the cases.
The lawsuits involve a government mandate requiring employers to provide cost-free coverage for contraceptives, sterilizations, and abortion-inducing drugs to employees. Religiously objecting non-profits had been offered an "accommodation" under which they could notify the government of their objection. The government would then direct their insurer or third party insurance administrator to provide the coverage.
The Little Sisters of the Poor, as well as the Archdiocese of Washington and a number of other religious non-profits, sued the government, saying this arrangement still forced them to cooperate with morally-objectionable practices because their notification would facilitate the problematic coverage.
Eventually, the cases made their way to the Supreme Court, after all of the plaintiffs had lost their cases at the federal circuit court level.
Then the Supreme Court, in a surprise move in the middle of the case, asked both the plaintiffs and the government to come up with an alternative solution to both provide cost-free contraceptive coverage and assure that the objecting non-profits are not complicit in this provision.
An acceptable alternative, the nuns and other plaintiffs proposed, would be if they set up their health plan at the beginning so as to not include the objectionable coverage; their commercial insurer would take note and notify the government of their religious objection. Coverage would be provided apart from the health plan and at a separate cost.
The Supreme Court treated these proposals as a new development in the case and remanded it back to the federal courts, voiding all the prior circuit court decisions. The parties now need time to craft a solution to please both sides, the court said.
Meanwhile, the court said "nothing" was to stop women from getting their contraceptive coverage as required by law, but added that "the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice."
This means that the Supreme Court "thought more likely than not, the government was going to be able eventually to carry the day," Dr. Helen Alvare told CNA. Thus, she said, the Court established that "the goal is to get the contraception there to these employees and their daughters, but to do it by means less restrictive of religious freedom."
Lawyers for the Little Sisters said this was a victory for them, while the White House said it was very pleased with the decision.
But ultimately, it still uncertain what will happen with the Little Sisters' health plans, said DeGirolami, because the sisters are self-insured. Self-insured plans are not covered in the court's opinion, he said, "so it's extremely unclear what will happen to them."
However, the court did suggest something significant in the nuns' favor – that their free exercise of religion may have been substantially burdened, Alvare said.
Under the Religious Freedom Restoration Act, the 1993 federal law at the heart of the case, "Government shall not substantially burden a person's exercise of religion" unless the government proves both that it has a "compelling interest" for acting and that it is using the "least restricting means" of furthering that interest.
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The court's decision may have confirmed the first part of the law, that the mandate is a "substantial burden," Alvare said. "I'm hard-pressed to think that they [the court] would have allowed this case to go back, unless there were at least strong disagreement there between the justices, or even maybe a majority in favor of the idea that the Little Sisters get to decide if they're burdened," she added.
However, a key concern in the court's decision was that it gave the government a "pass" in having to prove its contraception mandate was in the "compelling government interest," part of the Religious Freedom Restoration Act, she said.
By pushing for a solution where women employees were still guaranteed their contraception coverage, it seems the court "swallowed the [government's] argument that contraception is preventive health care," she explained.
This would be bad reasoning because cost-free contraception for everyone is not a public health necessity, she argued, in part because unintended pregnancy rates have risen despite the government claiming that contraception will solve that problem.
"The very groups that the government has targeted for free or low-cost contraception since the '70s, their rates of abortion and unintended pregnancy have soared," she noted. "People do more risky behavior when they think it's insured against."
Also, in its arguments the government "didn't ever even mention the annual billions of dollars of settlements from contraceptive manufacturers to women who have been injured or have died," she said, a huge liability to their defense of birth control as public health.
For instance, by July of 2013, Bayer Pharmaceuticals had settled claims related to its birth control drugs from over 6,700 plaintiffs totaling $1.4 billion, according to the Chicago Tribune.
"And the idea that this could be a compelling health interest alongside these billion dollar settlements is ridiculous," Alvare said.
The vast majority – "89 percent of sexually-active women" – are "using contraception" already, she argued, and the other women not using it have good reasons which do not involve cost.
"You can make it free, you can hand it out on the street corners. You're probably not going to get more women using it than use it now."
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