Attorneys representing the Little Sisters of the Poor and other religious groups whose lawsuits challenging the Obama administration’s contraceptive mandate have been sent back to lower levels by the Supreme Court on May 16 say they’re hopeful a compromise can be reached, but also not certain that’s how the story will end.
Going forward, observers say, much will depend on how inclined both sides are to make a deal.
An attorney representing petitioners in the case told Crux, “the Supreme Court has indicated that the parties should be given an opportunity to resolve their differences.”
The attorney, who asked not to be identified, added, “I think there are ways for the government to achieve its objectives without requiring religious organizations to violate their beliefs. If the parties approach this in good faith, a compromise is certainly possible.”
The consolidated Zubik v. Burwell case – named for Pittsburgh Bishop David Zubik and Sylvia Burwell, Secretary of the U.S. Department of Health and Human Services – pitted seven groups of religious petitioners in a legal fight against the HHS mandate, which they contend violate their religious freedom by requiring them to provide health insurance coverage for items such as abortion-inducing drugs, contraceptives and sterilization procedures not supported by their faith.
In a unanimous 8-0 ruling, the Supreme Court on Monday vacated earlier judgments and remanded the cases back to four United States Courts of Appeals – the Third Circuit in Philadelphia, the Fifth in New Orleans, the Tenth in Denver, and for the District of Columbia Circuit.
The Supreme Court’s decision noted that in supplemental briefs it had requested, both the petitioners and government confirmed that contraceptive coverage could be provided to employees without directly involving the religious employers who objected to providing or helping to facilitate that coverage.
The high court’s decision said, “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 ruling added, “We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”
Daniel Blomberg, a legal counsel for the Becket Fund for Religious Liberty who helps represent the Little Sisters of the Poor, said in an interview with Crux that the Supreme Court has offered a road map for the government to resolve the issue, but there’s no guarantee that will be the path taken by the administration.
“A very significant question moving forward is, will the government honor what the Supreme Court is directing it to do, or will there be a new permutation that still tries to violate the religious beliefs of these ministries?” he asked.
Blomberg noted that the government has changed its regulations 10 times already on what it requires of ministries in providing health insurance coverage.
The attorney for the Little Sisters added, “We think a compromise makes sense, and the Supreme Court has outlined what a compromise should look like, which is the government can deliver its (contraceptive) services, but it cannot use the ministries to do that.”
John Garvey, president of The Catholic University of America, which was one of the plaintiffs in the case, told Crux it would be hard for the government now to make the case that a compromise is not possible, when it already admitted that it could be done in its legal filings.
“I’m hopeful we can reach an agreement along the lines the court outlined… I hope it resolves the controversy,” said Garvey, who earlier served as dean of Boston College’s Law School.
On the day the Supreme Court issued its ruling, Garvey said in a statement that he was pleased that the court “offered us a way forward which doesn’t require us to participate in the provision of the services which we find to be morally objectionable.”
Petitioners challenging the HHS mandate included the bishop of Pittsburgh on behalf of that diocese, Priests for Life, the archbishop of Washington on behalf of that archdiocese, East Texas Baptist University, the Little Sisters, Southern Nazarene University in Bethany, Oklahoma, and Geneva College in Beaver Falls, Pennsylvania.
These charitable and educational religious institutions are seeking the same exemption to the Affordable Care Act’s contraceptive mandate that has been offered to churches.
Matt Bowman, a senior counsel for Alliance Defending Freedom, a group that is representing Southern Nazarene University and Geneva College in their challenges to the HHS mandate, praised the Supreme Court’s action in the consolidated cases, saying, “The Supreme Court upheld the idea that if the government has a way to achieve its purpose (of providing contraceptive coverage) without punishing religious organizations to force them to violate their faith, then it should use that alternative.”
Bowman added, “The Supreme Court already described basically what should happen,” that the government take steps so that coverage is provided “without religious organizations having to do anything to participate in it. That’s what religious groups have been asking for all along.”
The attorney for Alliance Defending Freedom said it’s too early to tell how and if a compromise might unfold.
“The ball’s in the government’s court here, and it has shown in the past intransigence in the face of legal requirements that they respect religious rights. We’ll have to wait and see,” Bowman said.
The U.S. Department of Justice’s Office of Public Affairs did not respond to a Crux request for an interview about the Supreme Court opinion. In an interview with BuzzFeed, however, Obama said he was happy that the court’s decision meant that women with health insurance will continue to have access to contraception.
In a briefing on the day of the court’s action, White House Press Secretary Josh Earnest said, “…the administration has put forward an accommodation that ensures that women, nationwide, have access to health care, including contraceptive coverage… while also protecting religious liberty.”
Earnest added, “Now what’s also true is there may be another process that plays out, because ultimately that was the announcement that’s been remanded to lower courts. And we’ll obviously continue to engage in the process.”
Blomberg said the Supreme Court’s decision was a big win for the Little Sisters and the other plaintiffs, because it vacated lower court rulings against them, and the court also said the government “may not impose taxes or penalties on petitioners.”
Noting that the Little Sisters would face a $70 million annual fine for failing to comply with the mandate, Blomberg called the court’s action a victory for the Little Sisters, for religious liberty and for all Americans.
“It shows in a big pluralistic nation like ours, you can protect religious liberty and accomplish government goals,” he said.
Blomberg challenged some media analysis that the Supreme Court had punted the issue back to lower courts.
“If this is a punt, then it’s a punt that gives the Little Sisters great field position,” he said.
Like other attorneys representing plaintiffs challenging the HHS contraceptive mandate, Blomberg said what’s next for the contentious issue is anyone’s guess. For example, he said, talks among the parties could lead to new regulations on the contraceptive mandate.
“Exactly how the back and forth will play out is unclear,” he said. “We’ll have a chance to see what the government is going to do, and respond.”