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Supreme Court Won’t Rule on Obamacare Birth Control Appeal

Justices send hot-button case back to appeals court to see if deal can be reached

Supporters of religious organizations that want to ban contraceptives from their health insurance policies rally at Supreme Court in March. (Saul Loeb/AFP/Getty Images)
Supporters of religious organizations that want to ban contraceptives from their health insurance policies rally at Supreme Court in March. (Saul Loeb/AFP/Getty Images)

The Supreme Court declined Monday to rule in a dispute over the contraception mandate in President Barack Obama’s health care overhaul involving religious nonprofits such as the Little Sisters of the Poor, a group of Roman Catholic nuns.  

The justices unanimously sent the issue back to lower courts to reconsider the case with the goal of letting the nonprofits and the Obama administration come to an approach that satisfies both sides.  

The case pits the government’s aim to provide contraception coverage under the health care law to all women against the nonprofit’s objection to their role in the process.  

[Related: Arguments Set for Challenge to Obamacare Birth Control Mandate]

The decision comes less than two months after the Supreme Court, which appeared equally divided in the case, took the unusual step of pitching its own practical solution to the main quandary in the case and asked each side to weigh in.  

The court said Monday that returning the cases to appeals courts for more negotiations is the most suitable approach to address the “significantly clarified views” of the parties when they responded to the Supreme Court’s proposed solution.  

“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,” the decision states.  

The White House, in a statement, said it was “gratified” by the court’s desire to see if a compromise can be reached.  

Monday’s decision is per curiam, meaning no one justice is said to have authored it, and it explicitly avoids ruling on the contentious legal issues in the case.  

The mandate in the 2010 health care law requires most employers to offer birth control to their employees as part of health insurance coverage. Religious nonprofits can be exempted if they notify the government in writing — called an accommodation — and the government then arranges the coverage through the group’s existing insurance plan at no cost to the group.  

[Related: Q & A: Little Sisters of the Poor v. Burwell]

But the nonprofits who are the petitioners in this case, including the Little Sisters of the Poor, say the accommodation makes them complicit in providing birth control against their beliefs and undermines religious freedom under the threat of millions of dollars of fines.  

The Supreme Court solution was this: Have religious nonprofits, when they are obtaining health insurance plans for their employees, inform their insurance company that they do not want their plan to include contraceptive coverage.  

The religious nonprofits would have no legal obligation to provide the coverage, would not pay for it, and would not be required to submit any separate notice to their insurer, the government or employees, the court wrote in the March 29 order.  

“Both petitioners and government now confirm that such an option is feasible,” the court wrote in Monday’s decision.  

The religious nonprofits have clarified that their religious exercise is not infringed under that proposal, while the government has confirmed that the proposal could ensure women receive contraceptive coverage seamlessly.  

Attorneys for the Little Sisters of the Poor called the decision an important win. The group has said without the ruling, it would face $75 million in fines per year for its 30 homes across the country where nuns care for the poor.  

The decision states that the government may not impose taxes or penalties on the nonprofits for not providing the accommodation notice.  

“The court has recognized that the government changed its position,” said Mark Rienzi, senior counsel at the Becket Fund for Religious Liberty and the lead attorney for the Little Sisters of the Poor. “It is crucial that the justices unanimously ordered the government not to impose these fines and indicated that the government doesn’t need any notice to figure out what should now be obvious — the Little Sisters respectfully object. There is still work to be done, but today’s decision indicates that we will ultimately prevail in court.”  

The court stayed out of the main contention in the case, where the nonprofits say the accommodation is a violation of the Religious Freedom Restoration Act which prohibits the government from substantially burdening the free exercise of religion.  

“The Court expresses no view on the merits of the cases,” the decision states. “In particular, 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.”  

Justice Sonia Sotomayor wrote a separate concurring opinion in the decision, joined by Justice Ruth Bader Ginsburg to highlight that outcome.  

“As enlightened by the parties’ new submissions, the Courts of Appeals remain free to reach the same conclusion or a different one on each of the questions presented by these cases,” Sotomayor wrote.  

Contact Ruger at and follow him on Twitter

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