Court remands two HHS challenges to lower courts 'in light of Zubik'

The U.S. Supreme Court in orders issued May 23 remanded two Catholic entities' legal challenges to the federal contraceptive mandate back to the lower courts.

The high court granted a petition for a writ of certiorari for two plaintiffs -- the Catholic Health Care System, an umbrella for four Catholic institutions affiliated with the New York archdiocese, and the Michigan Catholic Conference.

With its order, the court vacated the early rulings against the two Catholic plaintiffs by, respectively, the 2nd U.S. Circuit Court of Appeals and 6th U.S. Court of Appeals.

The orders follow the court's unanimous decision May 16 to send the Zubik v. Burwell case back to the lower courts. Zubik is actually a collection of Catholic and other faith-based entities' challenge of the Affordable Care Act's contraceptive requirement for employers.

The consolidated group of cases is named for Bishop David A. Zubik of Pittsburgh, one of the plaintiffs. "Burwell" in the case name is for Sylvia Mathews Burwell, secretary of the Department of Health and Human Services.

In its new orders, the court said that in both the Catholic Health Care System case and the Michigan Catholic Conference case, the "petitioners have made the government aware of their view that they meet 'the requirements for exemption from the contraceptive coverage requirement on religious grounds.' "

"Nothing in the Zubik opinion, or in the opinions or orders of the courts below, 'precludes the government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage' going forward."

But, the court also said, the "government may not impose taxes or penalties on petitioners for failure" to provide notice to the government stating their objection to the coverage.

The court heard oral arguments in Zubik v. Burwell March 23. Then six days later, it issued an unusual order seeking additional briefs from the plaintiffs and the federal government 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.

On April 12, the plaintiffs filed a brief with the court in which they agreed with the proposal that such coverage be provided through an alternative health care plan without involving the religious employers. The government also filed a brief, arguing that it wanted to keep the contraceptive mandate intact, but offered that it would go along with the court's suggestion despite the possibility that it might not close the door on future legal challenges.

In its May 16 decision, the Supreme Court made clear that it was not expressing an opinion on the merits of the cases that are challenging aspects of the federal government's health legislation and it also was not ruling on the issue of a potential violation of religious freedom.

Because of the "gravity of the dispute and the substantial clarification and refinement in the positions of the parties," the court stated that religious employers and the government 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 stressed that this approach is "more suitable" than addressing the refined positions submitted by both sides and added that "although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this court's involvement at this point to resolve them."