Supreme Court urges Little Sisters, feds to work it out on their own

The Supreme Court surprised the country today with a per curiam ruling in Zubik v. Burwell, better known as the Little Sisters of the Poor case. The court sent all the cases back to the lower courts, saying a supplemental briefing showed the religious nonprofits and the federal government could work out their differences and find an acceptable accommodation to Obamacare’s contraceptive and abortifacient mandate.

After the March oral arguments, the court made a highly unusual request of the two sides to write briefs explaining an acceptable accommodation to the mandate. The request seemed to be a strategy to avoid a 4-4 tie after the death of Justice Antonin Scalia.

In today’s per curiam ruling, the court had no opinion on the merits of the case, which means it did not decide whether the federal government’s current mandate violates the Religious Freedom Restoration Act. A per curiam ruling is an unsigned opinion from the entire court.

“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, 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 court wrote.

The court also said the cases themselves served as “notice” that the religious nonprofits object to the mandate, so the government could not fine the petitioners for failing to fill out the form that they find objectionable.

Justices Ruth Bader Ginsburg and Sonia Sotomayor also wrote a concurring opinion, saying the nonprofits’ proposals about insurance companies issuing separate contraceptive coverage for women at objecting nonprofits are unworkable. But they added: “As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases.”

The nonprofits, led by the Little Sisters of the Poor, will likely have a fuller response to the ruling when they have had time to process its implications.

In an accompanying order, the Supreme Court vacated the one circuit court victory of the religious nonprofits at the 8th U.S. Circuit Court of Appeals. The court sent the case back to the 8th Circuit for reconsideration in light of the Supreme Court order. The sole victory—won by group of Missouri nonprofits and Dordt College, among others—had not been a part of the Supreme Court case, but the federal government appealed its loss after the court had taken the other cases. That means those nonprofits have to win at the appellate level again.

The Becket Fund for Religious Liberty, which represented the Little Sisters as well as a number of other petitioners, declared the ruling a “win.” Alliance Defending Freedom, also representing some of the plaintiffs, said the court was right to protect nonprofits from fines for the time being and that the group would “look forward to addressing the remaining details.”