Richard Wolf

USA TODAY

WASHINGTON — The Supreme Court decided not to decide Monday whether religious objectors must play a role in offering contraceptive coverage to their employees, instead sending seven cases back to federal appeals courts in search of an elusive compromise.

The unanimous ruling appeared to be another example of the eight-member court's inability to settle cases in the wake of Justice Antonin Scalia's death and the impasse between President Obama and Senate Republicans over his replacement. It left both religious challengers and women's rights groups warily predicting victory.

By sending a series of disputes over the Affordable Care Act's so-called 'contraceptive mandate' back to lower courts, the justices all but assured that the issue will not get resolved before a new president is elected, which in turn could portend even greater changes for Obamacare.

“I won’t speculate as to why they punted, but my suspicion is that if we had nine Supreme Court justices instead of eight, there might have been a different outcome," Obama told the web site BuzzFeed in a live-streamed interview.

Already this year, the high court has deadlocked 4-4 in three cases, including a major labor rights case, and has greatly reduced the number of new cases it is accepting for next term. On Monday, it also sent a major class action case back to a federal appeals court for further action.

In the contraceptives case, the justices clearly are hoping to find a way to honor the objections of religious non-profit groups, such as charities and hospitals, while still guaranteeing free birth control to their employees. But even with an extra round of court papers, no such compromise has emerged.

"The court expresses no view on the merits of the cases," the opinion, which Chief Justice John Roberts read from the bench, stated. "In particular, the court does not decide whether petitioners' religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest."

Supreme Court struggles with just eight justices

Religious non-profits that have fought the Obama administration's contraceptives rule were pleased, because the justices vacated all appeals court decisions and absolved objectors from having to pay taxes or penalties in the meantime. Eight of nine appeals courts had sided with the government, not all of which were appealed.

“This is a game-changer,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty, which represented the Little Sisters of the Poor in one of the lawsuits. “The court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The court has eliminated all of the bad decisions from the lower courts. And the court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will."

Abortion rights and women's groups reacted dejectedly, largely because all but one federal appeals court had ruled in their favor. But they noted that in the meantime, the court inferred that women should be able to obtain free contraceptives from the employers' insurance companies.

"In punting today, the Supreme Court only forces women and families to wait longer to learn who in this country has the 'right' to interfere with a woman’s personal health care decisions," said Ilyse Hogue, president of NARAL Pro-Choice America. "Is it her boss, or is it her decision alone?"

Little Sisters waging big fight at Supreme Court

“We are disappointed that the court did not resolve once and for all whether the religious beliefs of religiously-affiliated non-profit employers can block women’s seamless access to birth control," Grethen Borchelt of the National Women's Law Center said. "Eight of nine circuit courts of appeals have already upheld women’s access to birth control no matter where they work."

The battle over the so-called 'contraceptive mandate' was one of the high court's biggest issues this term, pitting religious liberty against reproductive rights for the second time in three years. In 2014, the court ruled 5-4 that for-profit corporations whose owners objected to the rule could have their insurance plans deliver the health benefit directly.

That same accommodation had been offered to religious groups such as charities, hospitals and universities, but dozens complained they would be tainted even by transferring responsibility for services they equate with abortion to insurers or third-party administrators. They sought the same blanket exemption granted churches and other religious institutions under the Affordable Care Act.

Without Scalia on the court, it was obvious during oral arguments in March that the religious groups lacked the five votes needed to overturn the lower court rulings against them. The court's conservative justices said the government should not be able to "hijack" the insurance plans of religious groups against their moral beliefs. But the liberal justices said employees should not have to find and pay for separate insurance policies just for contraceptives.

Supreme Court deeply divided over religious freedom, reproductive rights

Justice Sonia Sotomayor reiterated that point in a concurrence signed by Justice Ruth Bader Ginsburg. The court's opinion, she wrote, "does not ... endorse the petitioners' position that the existing regulations substantially burden their religious exercise or that contraceptive coverage must be provided through a 'separate policy.'"

The justices could have issued a 4-4 decision upholding all lower court rulings, but that would have left different standards in different parts of the country. The 8th Circuit appeals court, with jurisdiction over Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota, ruled in favor of the non-profit organizations.

Instead, the court initially issued an unusual order shortly after hearing the case in which it suggested ways for the two sides to come together. Both sides responded, leading the justices to send the cases back to the appeals courts from where they came. All but one of those courts had upheld the government mandate.

White House press secretary Josh Earnest said the ruling may be another indication of the court's shortcomings while shorthanded.

“Our concerns about the continued vacancy on the court persist,” Earnest said. “It’s not obvious that an additional justice would have yielded a different result, but I haven’t heard anybody make the argument that leaving the Supreme Court of the United States short-staffed is good for the country.”

Contributing: Gregory Korte