Court 'win' for nonprofits has a lot of what-ifs

After the Supreme Court’s innovative ruling in the Zubik v. Burwell case Monday, the Becket Fund for Religious Liberty, a law firm representing many of the plaintiffs including the Little Sisters of the Poor, declared the result a “win.” Is it?

The court’s ruling Monday vacated and remanded to lower courts all the religious nonprofits’ cases challenging the Obamacare requirement that employers provide health coverage for contraceptives and abortifacients. It was a qualified victory and the best outcome the nonprofits could hope for if the court was divided 4-4 on the merits of the case—as seems likely. Several lawyers following the case explained: Before this ruling, the Little Sisters faced imminent and ruinous fines for not complying with the contraceptive and abortifacient mandate. For now, they and every other plaintiff in these cases do not.

“I’m not Pollyanna-ish, but I think the charities are much better off than they were before March 23 [the day of oral arguments],” said Kim Colby, a senior attorney with Christian Legal Society. Colby worked on an amicus brief on the side of the Little Sisters in this case. “You think, ‘Oh, all that work,’ [only for the case to be sent back down] … but when you read the opinion and think about what it means as a practical matter, it’s very encouraging.”

In its short opinion the court said the government could provide the objectionable drugs to the nonprofits’ employees, but the nonprofits would not face fines for not complying with the mandate while the case is ongoing.

If the court had issued a tie vote, the Little Sisters would have faced possible fines in the millions of dollars because they lost at the circuit, or lower appellate courts, level. A tie result leaves the circuit court rulings in place, dooming most of the cases but without setting a national precedent. The 8th U.S. Circuit Court of Appeals was the only circuit court to rule in the nonprofits’ favor.

“To the extent that it is a punt … it’s a punt that puts the Little Sisters in great field position,” said Daniel Blomberg, an attorney with the Becket Fund who has worked on the Little Sisters case from the beginning.

Stanford Law Professor Michael McConnell too wrote in The Washington Post that it “may not be a total win for the Little Sisters, but it is awfully close.”

“The government must be wondering why it has to work out an accommodation to protect the petitioners’ free exercise when it prevailed in the lower courts, in opinions that have not been reversed on the merits,” McConnell wrote.

The creative way the court found around a tie vote may have been the work of Chief Justice John Roberts. Erin Morrow Hawley, a former Roberts clerk, said she saw his fingerprints on the court’s action. In an article on SCOTUSblog, she said the ruling showed “the skillful Roberts is still at work, and still capable of surprising.”

“Indeed, in vintage John Roberts fashion, the short opinion snatches victory from the probable outcome of a tie,” she wrote.

Colby agreed Roberts must have played a role in bringing the entire court to this position.

“The chief justice is a consensus voter, and he’s really smart,” she said. “It speaks to the willingness of the court to come to decisions during what has to be a difficult transition time.”

Gerard Bradley, a constitutional law professor at the University of Notre Dame (the school is one of the plaintiffs), also credited Roberts with the result. But he was not so full of sunshine about the implications for nonprofits. He said the ruling was a “tactical victory” for the nonprofits but a larger “strategic victory” for the government because the court still kept the framework of the so-called accommodation for nonprofits objecting to the mandate.

“All that is to be negotiated is exactly how a religious employer will convey to its insurer (or to the government, which would in turn tell the insurer) that it does indeed want the ‘accommodation,’” Bradley wrote in an email. “We should therefore expect that, over the next several months, many of the complaining religious parties will recognize the limited nature of their victory … and try again to seize the strategic initiative in this momentous litigation.”

After the Supreme Court’s ruling, the nonprofits live to fight another day, but they’re returning to the circuit courts that already dismissed so many of their claims. Many circuit courts rejected the claim that the mandate was even a “substantial burden” on the religious exercise of the nonprofits, the preliminary question in a Religious Freedom Restoration Act legal test.

Colby said the nonprofits drew “very lopsided” panels of judges against them in the first round of circuit court rulings; she’s hopeful that they might draw different panels in this next chapter. She also thinks more circuits will grant en banc hearings with the entire slate of judges, which may give the nonprofits a better chance. But the lower courts do have “some very ideological judges,” she said, who could continue to ignore the nonprofits’ claims.

“It’s hard to predict how it will all play out because a big part of this depends on how the government will respond,” Blomberg said. But he thinks the admissions the government made in both the oral arguments and in the supplemental briefing—like that the nonprofits’ health plans are essential to make the mandate work—“make it a cleaner case.”

This will play out over the coming months. It takes 25 days for the Supreme Court’s official “mandate” on this case to go into effect for the lower courts. And circuit courts move at different speeds. The courts could also order the government and the nonprofits into mediation to try to come up with a solution on their own. So it could be months before the nonprofits see more action on their cases.