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Supreme Court Avoids Major Ruling In Birth Control Dispute

People wait outside to enter the U.S. Supreme Court in Washington, Nov. 3, 2014.
Carolyn Kaster / Associated Press
People wait outside to enter the U.S. Supreme Court in Washington, Nov. 3, 2014.

Supreme Court Avoids Major Ruling In Birth Control Dispute
Supreme Court Avoids Major Ruling In Birth Control Dispute GUEST:Glenn Smith, professor of constitutional law, California Western School of Law

Our top story on Midday Edition, the eight-member US Supreme Court avoided a possible 44 I decision today by sending an Obama care contraception case back to the lower courts. No issues were resolved by the justices. They said instead, additional information persuaded them it at a Coppermine is between the parties was come -- possible. Glenn, welcome. Thank you. How unusual -- how unusual is it to ask the parties involved to reach economize? Is very unusual. Under the principles of judicial restraint, they usually are alert to avoid having to decide the merits -- to be as actively involved in this and to actually asking for additional briefs and then using this in those briefs as the basis for sending the case down to lower courts, that is very unusual. This case is a sort of follow-up to the Hobby lobby case where the Supreme Court decided 524. That decision was for Hobby lobby. It allowed them not to offer contraception to its employees. How is this different? In this case, we don't have a private employers who claim that they personally had a religious motivation. We have in this case are brittle -- religiously affiliated organizations. They are not churches and church schools, but they are hospitals and other organizations that have a religious affiliation. Under the healthcare regulations, they didn't have to provide contraception, but they did have to fill out a written notice that they opposed providing that. Under federal law and were regulations, responsibility for [ Indiscernible ]. The parties claimed in this case just having to file a formal notification made them a complicit in a practice contraception that they opposed on religious grounds. As you mentioned, the Supreme Court as the parties to submit additional information after the arguments before the court. It was based on that that the court thought a compromise was likely. What kind of a compromise do you think might be reached? What the court suggested is what if instead of having to affirmatively file a written notification, religiously affiliated organizations could simply arrange for healthcare without contraception so that their insurers would already be on notice by their failure to provide contraception coverage that they opposed it. Both sides said that would be fine, all baby -- although they admitted that it wouldn't help with self-insured organizations. Also, it was interesting. Both briefs said that would work, but we are still right on the merits, and you should still in our neighbor which of course the court to do and sent back to lower courts. This may have been done so the court could avoid another for dashboard split. Why would they want to avoid that? In general, they don't like to decide cases by these inconclusive 4/4 splits. In this case, you had a number of lower courts. The decisions with -- which went both ways. If you affirmed the lower courts below by an equally divided court. If you have a 4-4 split that and play the lower court opinions, those opinions themselves were contradictory in terms of their rulings and their orders to the government. It really would have been an intolerable and especially confusing situation to have at the affordable care act saying different things in different circuits. Since the desk -- death of justice Scalia, what have they reached a vote on? Most cynical in California, it looks like labor unions, [ Indiscernible ], five, 54 [ Indiscernible ]. The cost of negotiating for employment benefits and wages, wages and all that. Two people that didn't want to join the union. It looked like justice Scalia was going to be part of a 5-4 block and perhaps making it much harder for labor union employees to organize and to function. That was definitely the most prominent recent example of the 4-4 split without justice Scalia which affirmed the Ninth Circuit and let the issue to be brought about a future case. Are more of the 4-4 split expected as the court starts issue rulings in June? Yes. I think the more cases as we get down to the wire, the cases where the court has not been able to come up with some sort of a majority position as they did in the case today, will mean that there will be more 4-4 cases. One that we are looking at closely is the latest iteration of University of Texas affirmative action plan which looks like it might have been an important clarification of affirmative action law will make be -- may be validated. The lower court will be affirmed without any Supreme Court and simple and a 4-4 court. We will see. Didn't necessarily expect today's climate massaging of the issues. So who knows what other club will -- clever solutions they have got up their sleeves. I know that will be talking to a lot next month. Thank you so much. Thank you for today. Cleansed of professor of constitutional law I California Western school of Law. [ Music playing ].

The Supreme Court failed to resolve a knotty dispute between faith-based groups and the Obama administration over birth control on Monday, the latest indication of the shorthanded court's struggle to find a majority for important cases taken up before Justice Antonin Scalia's death.

The justices asked lower courts to take another look at the issue in a search for a compromise, issuing an unsigned, unanimous opinion. The case concerns the administration's arrangement for sparing faith-based groups from having to pay for birth control for women covered under their health plans.


"The court expresses no view on the merits of the cases," the justices wrote, ending a major confrontation over President Barack Obama's health care law with a whimper and no resolution. The matter almost certainly will not return to the Supreme Court before the 2016 presidential election, and perhaps not until a new justice is confirmed to take Scalia's seat, if at all.

The outcome suggested the court lacked a majority for such a significant ruling, underscoring the effect of Scalia's absence. Already two cases have resulted in 4-4 ties since the conservative's death in February.

The lack of a resolution leaves the government able for now to ensure that women covered by faith-based groups' health plans have access to cost-free contraceptives. But the groups, which include not-for-profit colleges and charities, won't face fines for not adhering to administration procedures for objecting to birth control benefits.

By complying, they argued they would be complicit in making contraceptives available in violation of their religious beliefs as their insurers or insurance administrators would then assume responsibility for providing birth control.

The justices appeared evenly divided on the question when they heard arguments in late March. And the court seemed to acknowledge the division shortly after when it ordered the two sides to file a new and unusual round of legal briefs in search of a compromise, perhaps by making contraceptive coverage available without requiring a notice of objection.


Eight appeals courts nationwide have sided with the administration; four of those were challenged in the case before the Supreme Court. One court has ruled for the groups so far.

In 2014, the justices divided 5-4 with Scalia in the majority to allow some "closely held" businesses with religious objections to refuse to pay for contraceptives. That case involved the Hobby Lobby chain of craft stores and other companies that said their rights were being violated under the 1993 Religious Freedom Restoration Act.

Catholic and Protestant colleges, charities and advocacy groups invoked the same law in asking the government to find a way that does not involve them or their insurers in birth control provisions.

The challengers included Bishop David Zubik, head of the Catholic Diocese in Pittsburgh; the Little Sisters of the Poor, nuns who run more than two dozen nursing homes for impoverished seniors; evangelical and Catholic colleges in Oklahoma, Pennsylvania, Texas and Washington, D.C.; and the anti-abortion advocacy group Priests for Life.

Contraception is among a range of preventive services that must be provided at no extra charge under the health care law. The administration pointed to research showing the high cost of some methods of contraception discourages women from using them. One effective means of birth control, the intrauterine device, can cost up to $1,000.

Houses of worship and other religious institutions whose primary purpose is to spread the faith are exempt from the birth control requirement.

Other faith-affiliated groups have to tell the government or their insurers if they object, and allow their insurer or third-party administrator to handle matters related to birth control.

Some groups, including Little Sisters of the Poor, contract with church-based insurers, which themselves are exempt from having to provide contraceptives.

A ruling for the groups, the administration argues, would disadvantage tens of thousands of women.