Zubik v. Burwell
The Supreme Court sent seven consolidated cases over the Affordable Care Act's contraceptive-coverage rules back to the lower courts, after religious nonprofits and the government both said a workable compromise might be possible without requiring the objecting groups to notify anyone.
The unsigned order decided nothing about whether the notice requirement violates religious-freedom law, leaving that question for further proceedings on remand.
“The Court expresses no view on the merits of the cases.”
The order avoids ruling on whether the contraceptive-notice requirement violates religious-freedom law.
How it got here: Federal appeals courts had ruled on nonprofits' religious-freedom challenges to the contraceptive-notice rule, and the Supreme Court agreed to review and consolidate several of these cases.
The Case in Depth
What happened
Several religious nonprofits, including charities, universities, and dioceses, provide health insurance to their employees. Federal rules required them to cover contraceptives unless they filed a notice objecting on religious grounds. The groups argued that even filing this notice made them complicit in providing contraception, violating a federal religious-freedom law, while the government said the notice was needed to ensure employees still received coverage.
The question before the Court
Could religious nonprofits avoid submitting a notice objecting to contraceptive coverage, while the government still made sure their employees got that coverage?
Why it matters
Religious nonprofits like Little Sisters of the Poor and several universities continue operating under the disputed accommodation while courts work out a new approach. Their employees remain uncertain whether they'll get seamless contraceptive coverage, and in the meantime the government can't fine or tax the nonprofits for not filing the required notice.
What changes now
The cases return to the Third, Fifth, Tenth, and D.C. Circuits, which will give the nonprofits and the government time to work out an approach providing seamless contraceptive coverage without requiring the objecting groups to submit formal notice. The Supreme Court did not rule on whether the notice requirement violates religious-freedom law, so that question remains open, and the government cannot penalize nonprofits for not filing notice meanwhile.
What this does not decide
The Court explicitly said it wasn't deciding whether the nonprofits' religious exercise was substantially burdened, whether the government has a compelling interest in providing contraceptive coverage, or whether existing rules are the least restrictive way to serve that interest. Lower courts were warned not to treat this order as a signal of the Court's views.
Concurrences and dissents
Concurrence — Justice Sotomayor
“Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.”Sotomayor warns lower courts not to read hidden signals into the Court's remand order.
Justice Sotomayor stressed that the per curiam opinion takes no position on the merits and warned lower courts not to read it, or the Court's earlier March 2016 order, as signaling how the Court views the underlying religious-freedom dispute. She emphasized the opinion only lets courts consider whether coverage can reach employees without any notice from the nonprofits, not whether existing rules already violate their rights, and rejected the idea that coverage must come through a separate standalone contraceptive-only policy.
How the Court got there
The legal reasoning, step by step
- After oral argument, the Court asked the parties for supplemental briefing on whether contraceptive coverage could reach employees through the nonprofits' insurers without any notice at all from the nonprofits.
- Both sides responded that such an arrangement was workable: the nonprofits said their religious objection would be satisfied if they only had to contract for a health plan that excluded some or all contraceptive coverage, and the government said its procedures could be adjusted to still guarantee employees seamless coverage.
- Given this significant narrowing of the dispute, the Court decided it was better for the lower courts to work out the details of implementation first, rather than have the Supreme Court rule on the merits based on positions the parties had only just clarified.
- The Court pointed to past instances where it vacated and sent cases back for lower courts to address new developments in the first instance, rather than deciding the underlying legal question itself.
- The Court also made clear that, while this remand was pending, the government could not fine or tax the nonprofits for failing to submit the notice, since it could still rely on what it already knew about their objections to keep coverage flowing.