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.