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Women religious and others demonstrate against the Affordable Care Act’s contraceptive mandate March 23 near the steps of the U.S. Supreme Court in Washington.

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Both sides claimed victory in the Little Sisters’ contraceptive mandate case: So now what?
May 24th, 2016
By Catholic News Agency

WASHINGTON, D.C. – While both sides say they are happy with the U.S. Supreme Court decision to send back to the lower courts the Little Sisters of the Poor case challenging the federal government’s contraceptive mandate under the Affordable Care Act – the final outcome is still up in the air.

On May 16, the Supreme Court sent Zubik v. Burwell back to the lower courts. The justices’ unanimous decision, explained in a nine-page unsigned opinion, was based on the information that both sides submitted a week after oral arguments were heard in the case about how and if contraceptive insurance coverage could be obtained by employees through their insurance companies without directly involving religious employers who object to this coverage.

Archbishop Joseph E. Kurtz of Louisville, Kentucky, president of the U.S. Conference of Catholic Bishops, said he was encouraged by the court’s decision. “It maintains hope that we might resolve this dispute finally and favorably sometime in the future, and in the meantime, it prevents the administration from issuing crippling fines against those who object” to the health care law’s contraceptive mandate.

Bishop David A. Zubik of Pittsburgh, for whom the consolidated group of cases is named, said in a statement that the Pittsburgh diocese was grateful the justices “recognize our willingness to reach a resolution that allows us to abide by our faith and the government to achieve its goals.”

Five appeals courts had ruled in favor of the contraceptive mandate and one had ruled against it. But now, equipped with the new information both sides submitted to the Supreme Court, the lower courts have been ordered to review these cases once more.

Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg wrote separately to stress that the court had not decided any of the legal questions in the cases and cautioned the lower courts not to read anything into the new opinion.

Marc DeGirolami of St. John’s University School of Law said that “there will very likely be another round of litigation” in Zubik v. Burwell, “unless the parties can come to an agreement.”

And an agreement might not happen, Helen Alvare of George Mason University Law School said, because the government’s lawyers “were not at all cooperative” when asked to propose such a solution.

The lawsuits involve a government mandate under the Affordable Care Act requiring employers to provide cost-free coverage for contraceptives, sterilizations, and abortion-inducing drugs to employees. Religiously objecting nonprofits had been offered an “accommodation” under which they could notify the government of their objection. The government would then direct their insurer or third party insurance administrator to provide the coverage.

The Little Sisters of the Poor, as well as the Archdiocese of Washington and a number of other religious nonprofits, sued the government, saying this arrangement still forced them to cooperate with morally-objectionable practices because their notification would facilitate the problematic coverage.

Lawyers for the Little Sisters said this was a victory for them, while the White House said it was very pleased with the decision.

But ultimately, it is still uncertain what will happen with the Little Sisters’ health plans, said DeGirolami, because the sisters are self-insured. Self-insured plans are not covered in the court’s opinion, he said, “so it’s extremely unclear what will happen to them.”

However, the court did suggest something significant in the nuns’ favor – that their free exercise of religion may have been substantially burdened, Alvare said.

Under the Religious Freedom Restoration Act, the 1993 federal law at the heart of the case, “Government shall not substantially burden a person’s exercise of religion” unless the government proves both that it has a “compelling interest” for acting and that it is using the “least restricting means” of furthering that interest.

However, it seems the court “swallowed the [government’s] argument that contraception is preventive health care,” she said.

Catholic News Service contributed.

From May 26, 2016 issue of Catholic San Francisco.


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