New York Times (Editorial)
May 16, 2016
Every day that passes without a ninth justice undermines the Supreme Court’s ability to function, and leaves millions of Americans waiting for justice or clarity as major legal questions are unresolved.
On Monday, the eight-member court avoided issuing a ruling on one of this term’s biggest cases, Zubik v. Burwell, which challenges the Affordable Care Act’s requirement that employers’ health care plans cover the cost of birth control for their employees. In an unsigned opinion, the court sent the lawsuits back to the lower federal courts, with instructions to try to craft a compromise that would be acceptable to everyone.
This is the second time since Justice Antonin Scalia’s death in February that the court has failed to reach a decision in a high-profile case; in March, the court split 4 to 4 in a labor case involving the longstanding right of public-sector unions, which represent millions of American workers, to charge collective bargaining fees to nonmembers.
The Zubik litigation, which involves seven separate cases, was brought by religiously affiliated nonprofit employers like hospitals, colleges and social service organizations that do not want any role in giving their employees access to contraception.
The Obama administration, mindful of concerns over religious freedom, has already provided a way out for these employers: They must notify their insurer or the government, in writing, of their objection, at which point the government takes over and provides coverage for the contraceptives at no cost to the employers.
This sensible arrangement was not enough for several plaintiffs who said it still violated their religious freedom under a federal law, because the act of notification itself made them complicit in the provision of birth control.
Eight federal courts of appeals have already rejected this claim, finding that such a minor requirement did not place a substantial burden on the objectors’ religious freedom. In her opinion for the Court of Appeals for the District of Columbia Circuit, Judge Cornelia Pillard wrote that under both federal law and the Constitution, “freedom of religious exercise is protected but not absolute.” This was the right answer, and should have easily guided the justices in resolving this case.
But in a highly unusual order issued days after oral arguments, the justices asked both sides to consider a potential compromise — having a religiously affiliated employer tell an insurer of its objection to birth control coverage, and then having the insurer separately notify employees that it will provide cost-free contraceptives, without any involvement by the employer.
In Monday’s opinion, the court said both sides’ responses indicated that a compromise was possible. Without weighing in on the merits of the litigation, the court sent the lawsuits back to the federal appeals courts and told them to give the parties “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.’”
This move solves nothing. Even if these plaintiffs can find their way to an agreement with the government that satisfies their religious objections, there are other employers with different religious beliefs who will not be satisfied, and more lawsuits are sure to follow.
The court could have avoided this by affirming the appellate decisions that correctly ruled in the government’s favor. Unfortunately, the justices appear to be evenly split on this issue, as they may be on other significant cases pending before them.
The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.
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