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Court Looks for Compromise in Clash between Religious Freedom, Women's Health

FILE - The U.S. Supreme Court building is seen in Washington, D.C., Feb. 17, 2016.

Sister Loraine stood outside the U.S. Supreme Court last March and rejected the Obama administration's offer of compromise.

The Mother Provincial for the Little Sisters of the Poor joined several other religious nonprofits across the country to tell the world she refused to fill out a form that would release her from the obligation to pay for insurance coverage of employees' contraceptive use. She said the form was not — as the government claimed — an accommodation of her religious beliefs, but rather a compromise of her conscience.

The highest court in the land sought yet another opportunity for compromise Monday, sending the Little Sisters' case back to the lower courts for a decision that could ultimately satisfy both sides in a divisive election year battle.

"It's a compromise and a non-decision," said Steve Vladeck, professor of Law at the American University Washington College of Law. "It's a result of an evenly divided court on the merits and so the justices found a way to basically make the case go away without endorsing the other side's position," he said.

The court's opinion in Zubik v. Burwell, a consolidation of cases filed by religious nonprofits that objected to the Obama administration's mandate for contraceptive funding under the Affordable Care Act, was just the latest development in a long-running battle.

"The government is requiring us to include services in our religious health care plan that violate some of our deepest held religious beliefs," Sister Loraine wrote in a statement earlier this year.

FILE - Sister Loraine, of Little Sisters of the Poor, speaks to members of the media after attending a hearing in the 10th U.S. Circuit Court of Appeals, in Denver, Colorado, Dec. 8, 2014.
FILE - Sister Loraine, of Little Sisters of the Poor, speaks to members of the media after attending a hearing in the 10th U.S. Circuit Court of Appeals, in Denver, Colorado, Dec. 8, 2014.

She was objecting not only to the coverage, but also to the accommodation created by the administration that would have allowed religious organizations to file a form saying contraceptive coverage violated their religious beliefs. This option would have opened the door for the government and insurance companies to separately arrange for coverage of the employee's contraceptive use. Sister Loraine and other religious organizations continued with their lawsuits, saying their religious freedom was still being violated due to the fact that employees were receiving coverage of contraceptives.

Lower court compromise?

The court's unsigned opinion declined to consider the case on its merits, but the move was still analyzed for possible signs of victory — or defeat — on both sides.

"We're seeing the Supreme Court knock it back to the lower courts because in some way the idea is that we need to reach an accommodation with these businesses," said Jon O'Brien, president of Catholics for Choice, an organization that supports women's rights to follow their conscience in matters of sexuality and reproductive health.

O'Brien was disappointed by the court's failure to "stand up for the individual, conscience-based rights of workers." He said that "the idea that an employer can have a say in what benefits you can or cannot get, based upon their personal views on sex, sexuality or religion, I think that ultimately that is a very slippery and a very dangerous slope to go down."

But compromise in the heated battle over reproductive rights could be a victory.

"The court is calming things down and using a common sense approach," said Chad Pecknold, an associate professor at the Catholic University of America, who studies the intersections between religion and culture.

FILE – A demonstrator holds a sign outside the Supreme Court in Washington, D.C., June 30, 2014.
FILE – A demonstrator holds a sign outside the Supreme Court in Washington, D.C., June 30, 2014.

Pecknold said the return to the lower courts could favor the case brought by the Little Sisters and other religious organizations. He said changes in the way the government has argued its case necessitated the return to the lower courts so that new compromises could be considered.

"It's a prudential win for religious liberty," he said.

Ultimately, the move back to the lower courts may push the government to "work out some kind of arrangement with insurance companies so that the employees of these religious groups can be covered by the contraceptive mandate without any involvement from their employers," Vladeck said.

He added, "If that can happen, then I think these cases will all be dismissed."

House Speaker Paul Ryan called for an end to the battle in a statement released in response to the court's opinion.

"The Sisters deserve relief from this mandate, and an end to this ordeal," Ryan said. "The administration should resolve this as soon as possible."

Divided court

The court's opinion was noticeably impacted by the absence of a ninth Supreme Court justice, due to the death of Justice Antonin Scalia in February. While the case will answer key questions about the debate over religious freedom and women's health in this country, it also highlights the stalemate of election year politics.

"I don't think there's any question that if Justice Scalia had been involved in this case, the matter would have gone to the merit and we would be talking about a very important ruling one way or another on religious freedom," Vladeck said.

Scalia was a strong conservative voice on the court and could have tipped the balance for a 5-4 decision in favor of the religious organizations. The court could be reluctant to rule on controversial cultural issues of this import without a full group of justices. If the lower courts do not reach a satisfactory decision for both sides, the lawsuits would not make their way back to the Supreme Court until well after the fall presidential election, which will likely resolve the impasse on the appointment of a ninth justice.

"Here's yet another indication of what happens when a Supreme Court is evenly divided," Vladeck said.