The United States Supreme Court has declined to rule on the merits in a case brought by religious non-profit entities challenging the “religious accommodations” to the contraception mandate under the Affordable Care Act (ACA).  In Zubik v. Burwell, the Court issued a per curiam (unanimous) opinion remanding the case back to lower courts, while also vacating the prior judgments issued by those courts. 

As we have written in prior alerts, the ACA’s contraception mandate generally requires employers with 50 or more full-time employees to offer contraceptive coverage and related services at no cost.  Certain religious entities, such as churches, are completely exempt from this mandate.  The Department of Health and Human Services (HHS) has also provided accommodation schemes to certain other eligible entities that do not qualify for a complete exemption, but object to providing contraception services on religious grounds (such as colleges, universities, hospitals, and religious charities).  The accommodations permit such eligible entities to comply with the contraception mandate by arranging with an insurer or third-party administrator to provide contraceptive coverage at no cost to either the entity, or to its employees and beneficiaries.  An entity that objects to the mandate must opt into one of the available accommodations.  The plaintiffs in Zubik contended that even opting into one of the offered accommodations violates their religious beliefs.

The Supreme Court’s decision to remand the case to lower courts, rather than resolve it on the merits, leaves some uncertainty regarding the available accommodations for religious entities that do not qualify for a complete exemption, and create the possibility of conflicting opinions issued by lower courts in the future.  Some commenters suggest that the Court decided not to rule on the merits due to an inability to reach a five-vote majority on the issue (due to the vacancy left by Justice Antonin Scalia’s death in February).  Another possibility for the Court’s decision is that during the course of the litigation, the plaintiffs and HHS may have arrived at a compromise, i.e. a different accommodation scheme that the plaintiffs agree does not infringe on their religious beliefs, obviating the need for the Court to weigh in.