Things I love: Babies, Facebook posts explaining legal decisions, my Alma Mater Thomas Aquinas College (and of course the Little Sisters of the Poor) still being able to provide health care for their faculty and staff without violating their morals, and Supreme Court rulings. Hey look, these things all happened today! As I am not well-versed in legalese, I will be unashamedly quoting from my fellow Thomas Aquinas College Alumn James Layne’s super-lucid Facebook explanation.
So what officially was handed out was a per curium in Zubik v. Burwell, meaning it was remanded to the lower courts. As you may have seen from news reports, this is to allow the lower courts to find a compromise that works for between the plantiffs and defendants in the case.
Layne note that:
All unfavorable circuit opinions against TAC, against all of the petitioners including the Little Sisters of the Poor, have been VACATED. Thomas Aquinas College essentially has won, for now. The ruling of the D.C. Circuit against the College is VACATED. The lower courts are ordered to oversee agreements that respect the FREE EXERCISE of petitioners. While the parties are not mandated to agree, they are given the “opportunity” to reach a compromise, and I deeply suspect they will.
Half a loaf is better than none my friends.
Layne explains that this means:
“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.’ Id., at 1. We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”
So what does SCOTUS mean by agreement here?
The agreement if reached will be one along the lines the petitioners agreed to at oral arguments:
“Following oral argument, the Court requested supplemental briefing from the parties addressing ‘whether
contraceptive coverage could be provided to petitioners’
employees, through petitioners’ insurance companies,
without any such notice from petitioners.’ Post, p. ___.
Both petitioners and the Government now confirm that
such an option is feasible. Petitioners have clarified that
their religious exercise is not infringed where they ‘need
to do nothing more than contract for a plan that does not
include coverage for some or all forms of contraception,’
even if their employees receive cost-free contraceptive
coverage from the same insurance company. Supplemental
Brief for Petitioners 4. The Government has confirmed
that the challenged procedures ‘for employers with
insured plans could be modified to operate in the manner
posited in the Court’s order while still ensuring that the
affected women receive contraceptive coverage seamlessly,
together with the rest of their health coverage.’ Supplemental Brief for Respondents 14–15.”
Now, as a non-lawyer this a bit of a hairline distinction to me, so it was helpful to see what Layne understood the Court to mean by this:
It is a good order. It focuses upon the narrow agreement by petitioners and respondents in oral arguments that coverage could be provided without the objectionable notice requirement in the current accommodation. It does NOT rule out the possibility that there could be more disagreements in the implementation of the mandate that the Court may have to decide. But it does remove a major stumbling block… religious organizations had objected that by providing notice of their objection and by the plan they contracted for providing contraceptive coverage, they were essentially cooperating in something they view as sinful, the facilitation of that coverage. This compromise would allow the insurers to provide the coverage separately and without notice being required by the religious institution.
IN other words, the compromise the Court is urging would NOT require the College to in any way notify the insurance company as a trigger for the contraceptive coverage to be otherwise provided. This was the KEY objection to the government’s “accommodation.”
What if the parties don’t in fact reach this agreement?
Of course, it’s still possible on remand that the parties won’t agree and that the courts will have to make a decision again… in light of the admissions of the parties in supplemental briefing. So this COULD work its way back up to the Supreme Court if another circuit split happens… but the more likely outcome now is that the parties will compromise and avoid that. Good news.
The Court did NOT rule on the merits, so this does not set a precedent. It specifically did not decide whether there was a substantial burden, whether if there was that there was a compelling interest or that the least restrictive means were used to accomplish the objective of providing contraceptive coverage.
For those not familiar with legalese, “per curiam” (at least in this case) means that the Court’s order is UNANIMOUS and without dissent.
Now, as we all know from the past few years, “without dissent” does not mean the Justices didn’t reach the final ruling with perfect accord:
Justices Sotomayor and Ginsburg wrote separately in concurrence. They emphasized 1) that the court’s order is not on the merits; 2) that since it’s not on the merits, lower courts should not try to guess where the Supreme Court stands on the merits; 3) That the Courts of Appeals should not make the mistake of assuming that ANY of the tests in RFRA have been decided… this would include the least restrictive means analysis. What Sotomayor is hinting at here is that even though the government has admitted that it’s possible to provide a plan where no notice is required on petitioner’s part, the Supreme Court has not decided whether that is possible and whether what the government is currently offering by way of accommodation satisfies least restrictive means analysis; 4) that the Courts of Appeals are free to reach the same or a different conclusion than they reached before; 5) Specifically Sotomayor signals that she accepts the government’s argument that providing contraceptive coverage through a separate plan that requires separate enrollment a) might not be possible – she says the government provided some arguments and difficulties with this approach and b) that it would impose burdens on women that “Congress sought to eliminate” (nonsense, because Congress never mandated contraceptive coverage at all… this was an HHS imposed mandate, so Congress never considered the issue of how women were to achieve it… but this is Sotomayor’s adoption of the government’s position).
I find it significant that Breyer and Kagan did not join the concurrence. Could it be that believe the government’s admission about the notice requirement settles the least restrictive means question?
Time MAY tell.
Time may indeed tell. This is certainly something, though it looks as if we may have to hold our breaths for a forthcoming round to get a better idea of what this will mean.
TL/DR: The circuit court rulings unfavorable to the Little Sisters of the Poor and Thomas Aquinas College, among others, are vacated, and in a limited ruling, the lower courts are ordered to oversee agreements that respect free exercise. As I noted above, half a loaf is better than none, and even if SCOTUS did not set a precedent, I know many families who will be sleeping a bit easier tonight. Deo Gratias.