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Protesters gather during oral arguments of the Zubik v. Burwell case in March 2016. (Photo: Victoria Pickering/flickr/cc)

Supreme Court Punts Birth Control Case, Leaving Women's Rights "in Limbo"

Court is only forcing women to "wait longer to learn who in this country has the 'right' to interfere with a woman's personal health care," NARAL says

In a unanimous unsigned decision, the U.S. Supreme Court on Monday failed to make a ruling on a major reproductive rights case, sending it back to the lower court to find a compromise over whether religious employers should be required to provide contraceptive coverage for workers.

The case, Zubik v. Burwell, was brought by 29 religious nonprofits—including hospitals, charities, and colleges—objecting to the mandate in the Affordable Care Act (ACA) that requires health insurance companies to offer contraceptive coverage, as well as to the process by which schools and employers can opt out of providing it.

Organizations already have the option to fill out a form to alert the government of their religious objection to providing birth control to employees and students. But the groups argue that filling out the forms is still a violation of their religious rights, because doing so "triggers" the government to provide the coverage instead.

Or, as the ACLU put it, "This case is only one occasion in which institutions are arguing their religion beliefs entitle them to discriminate or to deny services."

Advocacy groups criticized the Supreme Court for punting the case and subsequently leaving women nationwide in limbo.

"We are disappointed that the Court chose not to issue an opinion today conclusively resolving this dispute and ensuring that women receive health insurance coverage that includes contraceptive care without further delay," said ACLU deputy legal director Louise Melling. "We are, however, optimistic that the courts below will rule in favor of women's access to the care they're entitled to under federal law and that the highest court will resolve this matter once and for all on the right side of the law and history."

"Religious freedom does not include the right to discriminate against women," Melling said.

Barry W. Lynn, executive director of Americans United for Separation of Church and State, also said, "Birth control is a vital component of women's health, and the result of today's action is that it's in limbo—once again. No other medication, medical procedure, or medical device has been subject to this level of scrutiny by the Supreme Court."

With the death of Justice Antonin Scalia in January leaving behind an eight-member court, any ties on a decision would leave previous court rulings intact. In Zubik v. Burwell, a 4-4 split would have handed the liberals a victory.

Lyle Denniston writes at SCOTUSBlog:

With this approach, the Court both achieved the practical results of letting the government go forward to provide the contraceptive benefits and freeing the non-profits of any risk of penalties, even though neither side has any idea—at present—what the ultimate legal outcome will be and, therefore, what their legal rights actually are under the mandate.

Monday's decision (pdf) reads, "The Court expresses no view on the merits of the cases."

Justice Sonia Sotomayor also wrote in a concurrent filing, "Today's opinion does only what it says it does: 'affords an opportunity' for the parties and courts of appeals to reconsider the parties' arguments in light of petitioners' new articulation of their religious objection and the government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice."

"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," she wrote.

But the court's justification meant little to reproductive rights advocates.

"Access to birth control is an issue that is top of mind for women and families across the country. When a woman is able to access contraception, she can take control of her own life and plan her family when and how she chooses," said Ilyse Hogue, president of NARAL Pro-Choice America. "In punting today, the Supreme Court only forces women and families to wait longer to learn who in this country has the 'right' to interfere with a woman's personal health care decisions. Is it her boss, or is it her decision alone?"

"Also, the court's decision is premised on both parties' inclination to 'compromise,' which is not something we have seen from the anti-choice movement in a very long time," Hogue said. "No one should have to ask their boss for permission to get the health care they need, and women shouldn't have to wait even longer for the courts to make that clear."

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