Supreme Court Sidesteps ACA Contraception Case

Author: David B. Weisenfeld, XpertHR Legal Editor

May 17, 2016

The Supreme Court will not resolve a contentious case involving the Affordable Care Act's (ACA's) contraceptive coverage requirement. Instead, it issued a unanimous ruling that sends Zubik v. Burwell back to the lower courts without any broad pronouncement.

Two dozen religiously affiliated nonprofits challenged this ACA requirement, which mandates that employer-sponsored group health plans and health insurers provide certain preventive services to employees at no cost. The Department of Health and Human Services has included contraception as part of these services. The nonprofits claimed that even though they can opt out, the requirement places a substantial burden on their sincerely held religious beliefs by allowing health insurers to provide these services to their employees or students.

During the oral arguments in March, the justices appeared equally divided and headed for a 4-4 tie. But one week later, Chief Justice John Roberts took the unusual step of requesting an additional briefing and asking both sides to address whether contraceptive coverage could be provided to the nonprofit challengers' employees, through their insurance companies, without the challengers having to ask for an ACA exemption.

Both the challengers and the Obama administration confirmed in their briefing that such an option is feasible. In light of those positions, the Court sent the case back to the respective appellate courts directing them to arrive at an approach that accommodates the challengers' religious rights while at the same time ensuring that women covered by these health plans "receive full and equal health coverage, including contraceptive coverage."

Since all but one of the federal appeals courts to address this issue have ruled for the government, the Supreme Court's action has the short-term effect of largely preserving the status quo and represents a limited victory for the administration.