The BLOG: Politics and Law

Little Sisters win a big battle — and maybe the war

The Little Sisters of the Poor and the other religious organizations challenging the Obamacare contraceptive mandate on religious freedom grounds won an important victory at the U.S. Supreme Court on Monday. The Court unanimously vacated the lower courts’ judgments against them, and remanded the cases for further exploration of the possibilities of sensible compromise that would satisfy their religious objections as well as the government’s interest in the provision of free contraceptives.

Of course, in doing so, the Court avoided the ideological 4-4 split that seemed likely in this case, given the sudden death of Justice Antonin Scalia and the inability of President Obama to gain Senate approval of his nominee, Merrick Garland. While some have commented that this means the Court punted, delaying a decision on the merits for another day, a 4-4 split at this time would have meant that the lower-court decisions against the religious orders, hospitals, universities and social welfare organizations would have prevailed. Instead, the Court unanimously vacated the judgments, saying in its brief per curiam order that nothing was decided on the merits: “Nothing in this opinion, or in the opinions or orders of the courts below, ‘precludes the Government from relying on this notice [of the Little Sister’s religious objection], to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage’ going forward. Because the Government may rely on this notice, the Government may not impose taxes or penalties on petitioners for failure to provide the relevant notice.” So the huge financial penalties that the Obama administration was seeking from the Little Sisters of the Poor were vacated.

While almost anything involving health insurance these days is complicated, the Court ruled in favor of what appears to be a compromise acceptable to the parties: “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.’”

Interestingly, Justice Sonia Sotomayor filed a concurrence, joined by Justice Ruth Bader Ginsburg, which stressed that nothing was being decided on the merits, suggesting that Supreme Court review would be available down the road when the presidential election were over, and a replacement Justice were in place who would make the stalemate of a tie unlikely. And so the war over religious liberty is not over, not even on the contraceptive mandate front.

Amusingly, after just saying that the decision did not involve a judgment on the merits, Justice Sotomayor couldn’t resist commenting on the merits in her concurrence, reacting to the Little Sisters’ suggestion that contraceptive insurance could be provided by separate coverage, much like dental and vision insurance is now: “Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act. And requiring that women affirmatively opt into such coverage would ‘impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.’” That, of course, is the view of just two members of the Supreme Court.

If one sign of fanaticism is never being able to let go of something, and to always want the final word, it seems clear that religious people do not have a monopoly on fanaticism. Ask the Obama administration, which has now been rebuffed on religious freedom twice by unanimous vote of the U.S. Supreme Court. The other time was the Hosanna-Tabor case, involving a constitutionally mandated first amendment exemption for religious ministers from employment discrimination law.

Meanwhile, the Little Sisters of the Poor can continue their good works unhindered by government interference. As I argued in an amicus brief, “The same religious spirit of charity that animates the Little Sisters’ service to poor elderly people also animates their desire not to arrange contraceptive coverage to their employees.” At least for now, their good deeds have escaped unpunished.

Dwight Duncan is a professor of constitutional law at University of Massachusetts School of Law in Dartmouth, Mass.

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