The U.S. Supreme Court issued an unusual decision in the latest legal challenge to the Affordable Care Act (ACA) to reach the high court. In Zubik v. Burwell, the Court consolidated appeals filed by religious nonprofit organizations that object to the “accommodation” process providing an exemption from ACA’s contraceptive coverage mandate. The nonprofits believe the process the Department of Health and Human Services (HHS) established for the organizations to take advantage of the exemption violates the Religious Freedom Restoration Act (RFRA).

The Court heard oral argument on March 23, 2016, and from the Justices’ questions it appeared the Court was evenly split 4-4 on whether the accommodation violates RFRA. Then, less than a week later, on March 29, 2016, in an Order indicating that a majority of the Justices could not agree on an outcome, the Court ordered the parties to file supplemental briefs asking them to look for compromise and to address how contraceptive coverage could be obtained through the insurance companies the petitioners use for their healthcare coverage without involving the nonprofits.

On May 16, 2016, the Court issued a per curiam opinion (a unanimous ruling of the Court) vacating the decisions of the Courts of Appeals and sending the cases back to those courts for further proceedings. The Court did not rule on the issues it had taken the case to decide, that is: “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.” Apparently, even with the supplemental briefing, a majority of Justices could not reach agreement on those issues. The Court may have decided to vacate the lower court decisions, instead of leaving them in place, because there is a split in the circuits on this issue, with the Court of Appeals for the Eighth Circuit (in Dordt College v. Burwell), ruling that the accommodation does violate RFRA. Had the Court merely affirmed the lower court decisions with a per curiam order, as is typical when there is no majority support for a decision, there would have been inconsistent requirements in different states.

The Court’s decision directed the Courts of Appeals to give the parties the opportunity to arrive at a compromise that accommodates the petitioners’ religious beliefs, and ensures that women covered by the petitioners’ health plans “receive full and equal health coverage, including contraceptive coverage.” Perhaps recognizing that in its current composition it is not able to decide these issues, the Court indicated that it is in no hurry to see these cases return to the Supreme Court, stating that it “anticipate[s] that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.” The Supreme Court was explicit in not ruling on the RFRA issues presented in Zubik, so the lower courts have no additional guidance regarding RFRA to apply to the cases that have been remanded. In a concurrence, Justice Sotomayor, joined by Justice Ginsburg, warned that lower courts should “not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.” Justice Sotomayor also emphasized that the lower courts should, in considering the new submissions of the parties, feel free to rule on the merits of the cases and either uphold the accommodation if they believe it is consistent with RFRA or reject it if they do not. If the lower courts were satisfied that the government’s accommodation is consistent with RFRA, they are likely to find that any additional accommodation agreed to by the parties is consistent with RFRA as well. On the other hand, the Eighth Circuit may reach the same conclusion it reached in Dordt College, that the accommodation violates RFRA. This may result in a continuing split in the circuit courts so the Supreme Court may be asked to resolve the issue once again.

Recognizing the probability of continued litigation, the government asked the Court to issue a ruling that resolves the RFRA issues with some finality. The Court’s opinion clearly does not do that. Thus, until the limits of RFRA are clarified, and for so long as the controversies regarding ACA and its implementation continue, we are likely to see continued challenges to the coverage and other requirements of this transformational law.

TweetLikeEmailLinkedInGoogle Plus
Photo of David Kaufman David Kaufman

David Kaufman is a Partner at Freeborn & Peters LLP, and he serves as a key member of the Firm’s Healthcare Practice Group.

David has practiced health law for more than 25 years, representing a range of entities responsible for ensuring cost effective and equitable access to healthcare, including health insurers, physicians groups, and regulators.

David has significant experience in federal and state-level regulatory and administrative law gained through private practice as well as in the public sector, serving as General Counsel to the New Mexico State Corporation Commission, Counsel to the New Mexico Superintendent of Insurance, and an Assistant Attorney General for the State of New Mexico.

Admitted to the state bars of New Mexico, New York, California, and Illinois, David’s prior experience in private practice includes work with national law firms in Chicago and Los Angeles, working on transactional healthcare matters and labor and employment issues, as well as Medicare and Medicaid reimbursement.

Before joining Freeborn, David served most recently as General Counsel for Blue Cross and Blue Shield of Illinois, where he was responsible for advising the company on regulatory and business issues in general and on the implementation of the Affordable Care Act.

Photo of Deborah Dorman-Rodriguez Deborah Dorman-Rodriguez

Deborah Dorman-Rodriguez is a Partner at Freeborn & Peters LLP, and is the leader of the Healthcare Practice Group.

Deborah has diverse experience as a healthcare attorney representing insurers, providers, and other healthcare entities. Most recently she served as the Senior Vice President, Chief Legal Officer, and Corporate Secretary at Chicago-based Health Care Service Corporation (HCSC), which operates BlueCross and BlueShield plans in Illinois, Montana, New Mexico, Oklahoma and Texas.

At HCSC Deborah was responsible for providing legal advice and consultation on such issues as federal and state regulatory implementations, litigation, mergers and acquisitions, corporate governance and compliance.  She oversaw HCSC’s legal strategy during a period of unprecedented turbulence in the healthcare industry and helped the company navigate the regulatory and business upheaval associated with the passage of the Affordable Care Act (ACA).

With her experience in serving as CLO of a large organization and in representing healthcare clients over the past 20 years, Deborah understands that no legal decision exists in a vacuum, and that it is vitally important to offer legal advice that is business focused, efficient, practical, and solution-oriented.

Before serving as HCSC’s Chief Legal Officer, Deborah was Vice President and General Counsel of Blue Cross and Blue Shield of New Mexico, an attorney with the law firm of Simons, Cuddy & Friedman in  Santa Fe, New Mexico, where she represented health insurers, physician groups, and other healthcare organizations, Special Counsel to the New Mexico Superintendent of Insurance, and a former New Mexico Assistant Attorney General specializing in health insurance and telecommunications regulatory issues.