The court’s unanimous but unauthored brief stressed that the justices were issuing no opinion on the merits of the cases. | Getty Supreme Court asks for Obamacare birth control compromise

The Supreme Court on Monday told the Obama administration and the religious nonprofits challenging Obamacare’s birth control coverage requirement to go back to the lower courts to find a solution that satisfies both parties.

The justices did not rule on the merits of the challenge in the Zubik v. Burwell lawsuit, which was brought by the Little Sisters of the Poor order of Catholic nuns and dozens of other nonprofit religious institutions, such as faith-based hospitals and Catholic schools.


They argued they shouldn’t be forced to provide certain forms of contraception — intrauterine devices and the so-called morning-after pill — that they say are akin to abortion.

The court’s unanimous but unsigned ruling -- which was summarized by Chief Justice John Roberts during the court's session -- stressed that the justices were not issuing an opinion on the merits of the cases.

“Given the gravity of the dispute,” the court wrote, the parties “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 justices want the lower courts to find a solution that allows religious institutions to object to providing birth control but also keeps intact Obamacare’s coverage protections. The health law requires employers provide contraception in their employee health plans because birth control is necessary for women’s health care and good public health.

The Obama administration said it was "pleased" with the decision.

"It will allow millions of women across the country to continue to get the health care coverage that they need," said White House spokesman Josh Earnest. So this obviously is an outcome that we are pleased to see.

He said the White House is still concerned with the Republican opposition to confirming Supreme Court nominee Merrick Garland. But, "it’s not obvious that an additional justice would have yielded a different result."

The ruling is the court's fourth related to Obamacare since 2012. The justices have upheld the most significant parts of the president’s health care law — the individual mandate and the health insurance subsidies — but have ruled against the law's Medicaid expansion and one aspect of its birth control coverage rules.

The court took a tortured path to the Zubik decision. Two years ago in Hobby Lobby v. Burwell, the justices ruled the same Affordable Care Act contraception coverage requirement violated the religious beliefs of certain for-profit companies. The court said that the administration cannot require these owners to include birth control in their insurance plans.

But the non-profit organizations operated under different rules than the for-profit businesses. The Obama administration, in an attempt to find compromise with the non-profits, said that these religious organizations can have their insurers or third-party administrators provide the coverage. The non-profits argued that the compromise didn’t satisfy their concerns and they carried on with the lawsuit.

The court had indicated that it wants to find an alternative scenario that both parties can live with. After oral arguments in March, the court even took the rare step of asking both sides to try to find a compromise. The non-profits said that their religious rights were being violated if they had anything at all to do with covering certain forms of contraception. The government reluctantly said it could go along with a court-suggested plan in which the non-profits notify their insurer of their objections when they start a new contract.

The court indicated Monday that those briefs convinced the justices that compromise was possible. The justices said the courts of appeals are the best venue to sort out the controversy and that they didn’t need to resolve the dispute at the high court at this point.

That ruling is just “another sign of the unusual path this case has taken,” said Louise Melling, deputy legal director of the ACLU, which backs the administration.

The court's ruling means the government can still provide birth control through its existing accommodation and the government cannot impose fines on the petitioners for not providing birth control.

This type of remand is unusual, and it comes as the court is down one justice after the death of Antonin Scalia. It raises the possibility that the court was split 4-4 — a deadlock that would have allowed the lower court rulings to stand — and found this scenario of turning back to the appeals court a better option. Returning to the lower courts a case of this breadth — it involved seven cases brought by dozens of challengers with four appeals courts decision — is uncommon but the court indicated that it has done the same thing three times in the last six years.

In a concurring opinion, Justices Sonia Sotomayor and Ruth Bader Ginsburg stressed that the opinion does not represent a ruling on the merits and sternly warned appeals courts not to read too much into the decision. The pair of liberal justice also said they believed any compromise arrived at in the cases had to offer woman "seamless" coverage, not just the opportunity to get a freestanding plan for contraception -- an option that currently does not exist.

"Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act,'" Sotomayor wrote.

Still, the challengers immediately hailed the ruling as a win.

“We are very encouraged by the Court’s decision, which is an important win for the Little Sisters. The Court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and lead Becket attorney for the Little Sisters of the Poor. “There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”

But Obama administration allies were just as confident that they’ll win.

“Eight of nine Circuit Courts of Appeals have already upheld women’s access to birth control no matter where they work,” said Gretchen Borchelt, vice president for reproductive rights and health at the National Women’s Law Center. “We are confident that the government’s birth control accommodation once again will prevail.”

Josh Gerstein contributed to this report.