Supreme Court

SCOTUS Avoids Ruling on Obamacare Contraceptive Mandate Accommodation, Orders Lower Courts to Rehear Little Sisters of the Poor and Related Cases

Supreme Court puts off ruling on Obamacare and Religious Freedom Restoration Act.

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Credit: Library of Congress

Today the U.S. Supreme Court issued an unsigned opinion in Zubik v. Burwell and the six other consolidated cases that center on the legality of the Obama administration's scheme for granting accommodations to religious institutions that object to providing certain forms of birth control to their employees as required by Obamacare. These cases asked whether the administration's plan violated the Religious Freedom Restoration Act. Today's opinion, however, avoids reaching any answer to that question. As the opinion declares, "the Court does not decide 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." Instead the Supreme Court has sent Zubik and the other cases, including Little Sisters of the Poor Home for the Aged v. Burwell, back down to the lower courts in the hopes that some sort of compromise might be achieved.

"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,'" the Court held. "We anticipate that the Courts of Appeal will allow the parties sufficient time to resolve any outstanding issues between them."

In other words, the Supreme Court has punted, leaving the ultimate decision on this issue for a later date.

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  1. I wonder about the politics of this, how they split on different aspects and could get no desirable majorities. And what difference would Scalia have made?

  2. he 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,'”

    Because having someone else be forced to pay for your contraceptives is just as much a right as religious freedom. Why do they even bother pretending that they have any regard at all for the Constitution?

    1. They bother because there are still some people who believe the kabuki dance.

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  4. “As the opinion declares, “the Court does not decide 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.”

    Yes, because they can’t defer to Congress on the Religious Freedom Restoration Act because that would be judicial restraint. And, obviously, they can’t uphold our First Amendment free exercise rights because that would be crazy.

    Meanwhile, the Court needs to practice judicial restraint because democracy means making the minority eat broccoli. Besides, if they didn’t make people eat broccoli, Roberts was afraid that might diminish the prestige of the Court.

  5. “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,”

    Wow. That is some good horseshit. “Make sure that everyone gets what they want, no matter how contradictory in reality.”

    Guess they got tired of 4-4 decisions.

  6. It looks like the Little Sisters will be getting even poorer.

    1. And constitutional lawyers richer! All is right with the country!

    2. Well, forcing people to violate their religious convictions is what freedom of religion is all about.

      I mean, you can practice your religion. . . . just so long as it doesn’t conflict with something Obama wants to do.

      Oh, and the Constitution doesn’t protect stupid religious beliefs. Scientists say a fetus is just a bunch of cells, so, obviously, nuns don’t have any rights there.

      Incidentally, stupid speech isn’t protected by the First Amendment either. I mean, you’re free to say what you want so long as it doesn’t have the potential to hurt anybody’s feelings or promote climate change denial.

      A lot of people don’t understand this stuff, but most of them don’t have PhDs and think they can understand what they read in the First Amendment. It’s actually too complicated for average people to understand and was written by white slave owners anyway–so, we’re not smart enough to understand it, and, even if we did, we should ignore what it says anyway.

      1. Well, forcing people to violate their religious convictions is what freedom of religion is all about.

        Until you have a case of a Christian Health Insurance Company protesting, rhe problem is that the contraception mandate does not force anyone to violate their religious convictions.

        The mandate, as onerous as it is for other reasons, does not compel anyone to purchase and take/use birth control. Nor does it force the Sisters to pay for anyone else’s birth control. The Sisters are not required to go to the pharmacy, purchase birth control, and distribute it. Nor are they required to reimburse their employees for birth control expenses.

        Rather, they are required to offer health “insurance” that includes coverage for birth control. (Hint: The insurance companies pay for the “benefits”, not the employers that contract with those companies for health “insurance”.) That is very… very… different. Those that have a religious conviction against birth control are still, absolutely, free to exercise their religious freedom and choose not to purchase birth control with their health “insurance”. They are still free to not distribute condoms in their sex-ed classes. And et cetera.

        1. “Rather, they are required to offer health “insurance” that includes coverage for birth control.”

          That is a distinction without a difference.

          If the Sisters say it violates their religious convictions, then that should be good enough.

          I wouldn’t even support forcing them to violate their religious convictions if they were duly convicted of a committing a crime.

          1. “Rather, they are required to offer health “insurance” that includes coverage for birth control.”

            IOW, the Catholics will have to foot the bill for birth control. You can handwave all you want, but that is exactly what violates their free exercise of religion.

            1. “(Hint: The insurance companies pay for the “benefits”, not the employers that contract with those companies for health “insurance”.) “

              Imagine explaining this to the Puritans.

              You aren’t being forced to violate your religious convictions and support the Anglican church!

              Your taxes are being used by the government to support the Anglican church. And that’s very, very different!

              Um . . . no it’s not.

            2. This whole critique also rests on the bizarre idea that what is and what isn’t a legitimate religious conviction should be determined by some third party–be it See.More or someone else.

              These are nuns who have publicly made a profession of their faith. They didn’t construct new religious convictions after the ACA was passed. The ACA violated the beliefs they had already professed.

              Who is See.More or me or Barack Obama or the Supreme Court or anyone else to say whether being forced to violate what they believe to be their own religious convictions is legitimate? Being free to make choices for ourselves about our own faith and how we practice it is what we’re talking about when we talk about religious freedom. Since before World War II, we haven’t even forced conscientious objectors to carry a gun on religious grounds after they’ve been drafted! Nuns get drafted into offering an expanded insurance policy, and suddenly their religious beliefs go out the window?

              Progressives just deny the rights of anybody they don’t like or anyone who gets in their way–that’s one of the reasons why progressives are America’s most horrible people.

              1. This whole critique also rests on the bizarre idea that what is and what isn’t a legitimate religious conviction should be determined by some third party–be it See.More or someone else.

                Strawman. I never argued their convictions.

                I am rebutting the fallacious argument that paying for health insurance that covers birth control is the same as buying or providing birth control. I notice y’all haven’t actually offered any meaningful rebuttal to refute that.

                Paying someone’s health insurance premiums for a policy that covers birth control, which may or may not be used, is more like paying someone a wage that they may, or may not use, to buy condoms. But it is definitely not “buying them birth control”.

                Therefore, their religious convictions, which I do not argue one way or the other, are no more impugned by this mandate than paying a wage that the employee then uses to buy condom.

                1. “Strawman. I never argued their convictions.”

                  You’re assuming that some third party has the authority to determine whether their religious convictions are legitimate.

                  That’s horse shit.

                  I get to say when my religious convictions are being violated. That’s what free exercise means. That’s what freedom from establishment means, too. It means I get to choose my own religious convictions and how to practice my faith.

                  If you refuse to accept, “No, I won’t do that because it violates my religious convictions” as a justifiable exercise of religious freedom, then you must be assuming that some third party has the authority to decide whether someone else’s religious convictions are legitimate. And you have no such authority. None whatsoever.

                  The only legitimate infringement on someone’s right to choose their own religious convictions and how to practice their faith is when their religious practiced is used to violate someone else’s rights. And that isn’t happening here. The Sisters’ employees are free to use their wages to buy all the birth control they please. They can even buy abortions with their wages!

                  Pointing out that your argument rests on an unsupported assumption is no straw man. It’s simply pointing out that you’ve made an assumption about third party authority–whether you realize it or not–that has no basis in reality.

              2. the bizarre idea that what is and what isn’t a legitimate religious conviction should be determined by some third party

                About as clear a violation of the Establishment Clause as you can imagine, short of an actual Federal Church being set up.

              3. Isn’t that true of any matter you go to court over? It’s always a 3rd party deciding, unless the proceedings are crooked.

                1. Actually, the Court should rule on the government’s behavior in these cases–not whether the religious convictions in question are legitimate.

                  And if you’re a nun, the court should assume that your religious convictions are easy–whatever their order has said they’ve been for however many millennia.

                  Regardless, the court should not rule on whether someone’s religious conviction are legitimate. They have no business doing that ever.

                  The court should rule on whether the government is infringing on someone’s religious convictions. The religious convictions themselves are only in question if the practice violates someone else’s rights. Otherwise, they’re inviolate.

                  The government has no business ever saying what is and isn’t a legitimate religious conviction. None of our rights are granted or defined by government. Never have been. Never will be.

            3. Ken Shultz|5.16.16 @ 12:20PM|#

              “Rather, they are required to offer health “insurance” that includes coverage for birth control.”

              That is a distinction without a difference.

              R C Dean|5.16.16 @ 1:21PM|#

              IOW, the Catholics will have to foot the bill for birth control. You can handwave all you want, but that is exactly what violates their free exercise of religion.

              “Paying for…” means to spending money to purchase X (in this case birth control) OR paying money to reimburse someone else’s expense for X. Your arguments are the same as saying that by paying a wage or salary, they are “paying for” whatever the employee spends that money on.

              You are also grossly misrepresenting the mechanics of health insurance. Paying health insurance premiums is not equal to paying for a doctor’s visit, a flu shot, or birth control any more than paying an employees wage is equal to buying them cigarettes when they purchase a carton.

              You can handwave all you want, but mandating that an employer provide health insurance that covers birth control is not the same as paying for or providing birth control. Therefore, the nun’s and Hobby Lobby’s arguments and your apologetics are simply disengenuous.

              1. You are also grossly misrepresenting the mechanics of health insurance.

                Sweetie, I’ve forgotten more about the mechanics of health insurance than you have ever known.

                Paying health insurance premiums is not equal to paying for a doctor’s visit, a flu shot, or birth control any more than paying an employees wage is equal to buying them cigarettes when they purchase a carton.

                But that doctor’s visit, etc. is exactly what you are paying for, through an intermediary. Do you understand there is a difference between paying an insurance company to cover a highly defined bundle of health care goods and services and paying an employee, who can spend their money on what they want?

                The insurance company is obligated, by contract, to pay for the defined bundle of health services. Yes, you are in fact paying, indirectly, for those services. What you pay is a direct consequence of the services the insurance company covers. Your employee is not obligated to buy cigarettes. What you pay is in no way affected by what they use the money for.

                1. Do you understand there is a difference between paying an insurance company to cover a highly defined bundle of health care goods and services and paying an employee, who can spend their money on what they want?

                  Since I never said they were the same, sure I understand there is a difference.

                  Do you understand that paying for health insurance that the employee can use on what they want within the defined benefits is more similar to paying a wage that may be used to buy condoms than it is to “paying for birth control”? The monies are spent on the same thing (birth control). The only difference is the intermediary; the employee vs. the insurance company.

                  Do you understand that there is a difference between buying birth control for someone and paying an insurance company to cover a bunder of care and goods that may or may not be used to buy birth control?

                  [continued]

                2. [concluded]

                  Do you understand that, if you follow the spurious logic that paying for health insurance that covers birth control is the same as buying birth control, then, even if the nun’s get an exemption, they are still “paying for birth control” as long as they are paying for health insurance? After all, the monies they pay into premiums may be spent on birth control for someone else who is covered by the insurance company but is not employed by the nuns.

                  Once the nuns pay somebody, whether it is premiums to an insurance company or wages to an employee, that money is no longer theirs to control. It then belongs to the receiver and the nuns are not morally responsible for how the receiver spends it. The fact that the receiver ultimately uses their money to purchase birth control in no way equates to the nuns paying for birth control.

              2. “You are also grossly misrepresenting the mechanics of health insurance.”

                You’re dancing around the fact that these nuns are being forced by the government–against their will–to do something that violates their religious convictions.

        2. “That is very… very… different.”

          Because… reasons? Why is it different?

  7. while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’

    Well, it’s pretty clear who Roberts is expecting to be doing the compromising. Can we now dispense with the pretense that the Roberts Court is playing some sort of 3-D chess and is simply running cover for executive power?

  8. “In other words, the Supreme Court has punted, leaving the ultimate decision on this issue for a later date.”

    Specifically, a later date with hopefully a packed progressive judiciary. Delay until then. No surprise there, you can’t legislate from the bench without a majority.

  9. OT: I just discovered a food truck here in DC called “Miso Honey”. LACIST!

  10. If Caligula can make Incitatus a senator, maybe the next President can nominate an ass for Supreme Court justice.

    1. Consul.

      And the President before this one nominated his horse to the Supreme Court.

      Her name was Harriet Miers.

      1. I forgot about her.

        Then maybe the next Pres. can nominate a feral, wild ass.

        1. Assuming it’s Trump or Hillary, the next President will BE a wild, feral ass.

  11. Today the U.S. Supreme Court issued an unsigned opinion in Zubik v. Burwell

    Emphasis added. Sheesh, not even “SCOTUS Staff”?

  12. Today the U.S. Supreme Court issued an unsigned opinion…

    In other words, the Supreme Court has punted, leaving the ultimate decision on this issue for a later date.

    Pussies.

  13. 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,

    How is that not a win for the administration? This case was supposed to be about whether the Catholics could be ordered to provide contraceptive coverage (directly or indirectly). If SCOTUS just said that a “compromise” must include contraceptive coverage, then I think the Catholics just lost, didn’t they?

    1. Yeah, pretty much. With a “reliable conservative” like Roberts leading the Court, why again are we supposed to be worried that Clinton might appoint liberals?

    2. It won’t be a “win” unless all parties sign an agreement.

      If the Little Sisters of the Poor sign a deal, it will be because their consciences are satisfied, and I am not going to pretend to have a more scrupulous Catholic conscience than the Little Sisters of the Poor.

      If they cut a deal, I will presume it means that their First Amendment rights have been accommodated.

      If they *don’t* cut a deal, then whatever benefit the administration got out of this “victory” will be lost, unless they can get their media whores to bitch and moan about the nuns’ “intransigence.”

      But a key problem in this case, from the administration’s perspective, is that no matter how much they may want to demonize nuns who help the elderly poor, it’s unlikely the public would swallow it.

      1. It won’t be a “win” unless all parties sign an agreement.

        Its a win because SCOTUS just defined what is acceptable, either through agreement or court decision, namely “women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage”.

        The Catholics health plans must include contraceptive coverage, according to SCOTUS. How is that not a win regardless of whether its by agreement or court decision. If the Catholics don’t agree, then the courts will decide, and we were just told how they will decide.

        1. If that’s the kind of deal the Court insists on, I trust the nuns not to knuckle under.

          On the contrary, if the nuns *do* approve a deal, I trust them enough as to say, in advance, that such a deal would avoid them giving material cooperation to evil, which is what they’ve been seeking.

          1. The only way I see the nuns selling out is if the Vatican orders them to – and with this Pope, who knows?

            Short of that, I’d trust them only to take a legit deal.

          2. If that’s the kind of deal the Court insists on

            I think they just did. With this opinion on the record, I can’t see a lower court accepting anything less.

  14. So: a 4-4 split?

  15. Cowards!

    I wonder how I could ever not be arrested for contempt of court if I were to speak there?

    “But, your honor, the court is contemptible! It only stands to reason that one holds it in contempt!”

    *Wham* *wham* “Stop resisting!” *wham* *wham*

  16. I’m going to tentatively defend what the Court is doing here.

    In response to prompting from the Court, the solicitor general developed the government’s position until it wasn’t very far from the position of the nuns.

    So the Court said, “if your positions are so close, why not try and work out a deal? If you can’t, the lower courts can take the case up again.”

    The purpose of courts of justice is to resolve disputes which *cannot be otherwise resolved.* But if a dispute can be settled out of court, that’s where it belongs – out of court.

    1. That would all be fine, if the Court hadn’t just specified that the deal must include contraceptive coverage by the health plan. Which is exactly what the Li’l Sisters sued about.

      1. Their lawyers are calling it a “big win”.

        Of course, that could just be Big Spin.

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