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View from the Hill

SCOTUS sends contraception decision back down

On Monday, the Supreme Court returned the challenge to the Affordable Care Act’s contraception mandate brought by faith-based groups to the lower courts, signaling a move to avoid the 4-4 gridlock that has left the court unable to perform its core function since the death of Justice Antonin Scalia. 

In a unanimous opinion, the court refrained from ruling on the conflict, imploring the two sides to reach a compromise on the controversial contraceptive mandate. In sending the case back to the lower courts, the justices also nullified the prior decisions of federal appeal courts, most of which had sided with the Obama Administration.

The conflict is centered around Obamacare’s mandate that businesses provide access to free contraception for female employees on their company health insurance plans. Houses of worship (churches, mosques, synagogues) were initially exempted from the requirement, and in 2014, the court ruled in Burwell v. Hobby Lobby Stores that family-owned corporations were exempt from providing contraceptive coverage under their insurance plans if doing so violated their religious beliefs. The Obama administration also previously altered regulations to accommodate the faith-based groups, such as religiously affiliated churches, hospitals and schools, allowing the organizations to notify their insurance providers or the government that they would like to be exempt from paying for the coverage based on their religious convictions. In this case, the government would pay for continued access to free contraceptives for female employees.

However, this buffer failed to appease all religiously-affiliated organizations, many of which argued that their obligation to notify the government of their exempt status so that it can pick up the tab still makes them compliant in a program that contradicts their moral and religious convictions. Many do not even want their employees being provided with birth control. Conversely, the Obama administration has argued that the absence of free contraception coverage forces many women to forgo necessary precautions against unwanted pregnancy due to high costs.

In their decision, the justices emphasized they were not ruling for either side, explaining that they had not made any decision with regard to whether the mandate places a substantial burden on religious liberties or the government has a compelling interest in enforcing contraceptive coverage. The court did point to a compromise in which the government could continue to provide access to birth control in a less restrictive way without requiring faith-based companies to notify the government of their abstention. Nevertheless, the faith-based groups prefer complete exemption and the challenge may return to the Supreme Court when a new justice is eventually nominated.

Until a decision or compromise is reached in the lower courts, the government will legally be able to continue to provide female employees of faith-based groups with access to free contraceptives on their company insurance plans. However, the groups will not be subject to fines if they fail to notify the government or insurance providers of their abstention from paying for the coverage themselves.

The non-decision follows a string of three 4-4 deadlocks this year following the death of Justice Antonin Scalia in February. President Obama nominated center-left judge Merrick Garland to fill the vacancy in March, but Republicans in the Senate have refused to give Garland a hearing. Since the day of Scalia’s death, Republican lawmakers have asserted it would be unprecedented for a lame duck President to nominate a new justice to the Supreme Court. 

Isaac Unah, Associate Professor of Political Science at the University of North Carolina-Chapel Hill and expert on judicial institutions, argues the claim is false-Reagan nominated and the Senate confirmed Justice Kennedy in an election year. Rather, the claim is rhetoric used to enable Republican Senators to forgo their constitutional mandate and avoid confirming an individual that would shift the ideological balance of power in the Supreme Court. According to Unah, the court has been, despite the claims of nonpartisanship, majority conservative since the late 1970s. Republicans are hoping their presidential nominee will prevail in the upcoming election, and by stalling they can enable him to maintain the conservative balance of power on the nation’s highest court.

Unah warns the deadlock is not advantageous for democracy, with the failure to provide decisive rulings leaving one of the pillars in the separation of powers impotent and unable to perform its central function. When the court is deadlocked at 4-4, the decisions of the lower courts remain, thus leaving a decentralized legal system where the law is different in various circuits. The issue should not last for long, however, as the new government will most likely make confirming a new justice one of its top priorities. After that happens, it is likely this challenge will return to the nation’s highest court. In that case, the fate of the contraception mandate may very well be decided by the outcome of the presidential election. 

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