Understanding the surprise HHS decision

The U.S. Supreme Court on May 16 took the unusual (but not unprecedented) step of sending briefed and argued cases back down to the Courts of Appeals from whence they came, along with unveiled suggestions to the parties to make a deal. In legalese, the court “vacate[d] the judgments below and remand[ed] to the respective United States Courts of Appeals for the Third, Fifth, 10th and D. C. Circuits.” Before interpreting the present and possible future meanings of the court’s action, let us review the relevant law.

The health care reform law, the Affordable Care Act (ACA), invited a federal agency, the Department of Health and Human Services (HHS), to write regulations requiring health insurance to provide free “preventive services” to women. The HHS subsequently issued regulations (“the mandate”) claiming that a host of drugs and devices acting to prevent conception and/or destroy embryos (e.g., the IUD, morning-after pills, etc.) were “preventive health care” for women. Churches were exempted from these regulations, but religious nonprofits (e.g., hospitals, schools and homes for the elderly run by the Little Sisters of the Poor) were not. Rather, they were required to complete a form instructing the government how to attach contraception and abortifacient coverage to their existing insurance plan, under threat of crushing fines of $100 per day per employee.

About four years ago, many religious nonprofits, including the Little Sisters of the Poor (and Our Sunday Visitor), sued the federal government. They alleged that a federal law entitled the Religious Freedom Restoration Act (RFRA) protected their free exercise of religion to refuse to provide the government the information and form it demanded. Under the RFRA, the Little Sisters claimed that they had shown the requisite burden on their religion: The contraception mandate required them to facilitate behavior contradicting their religious beliefs. The Little Sisters also claimed that the government could not make the required showing under RFRA of a “compelling state interest” brought to bear on religious actors by means “least restrictive” of religious free exercise.

No legal precedent

Following the oral argument on the merits of the case, the court took the unusual step of ordering both sides to write supplemental briefs regarding the possible existence of alternative means for delivering contraception to employees of religious nonprofits. By taking this step, the court appeared influenced by suggestions made by counsel for the religious institutions that there existed means to deliver contraception to employees and their female children that did not require religious actors’ immoral cooperation. At the same time, the court appeared influenced by the government’s arguments (first aired at oral argument) that only “seamless” delivery of contraception — by means of an employee’s main health insurance policy — could avoid unduly burdening women.

In its opinion May 16, the court claimed it was not settling any legal question raised in the mandate litigation — not the question of whether the Little Sisters were burdened, nor whether the government had shown a compelling interest, nor whether the government was employing the least restrictive means. Rather, the court said it was remanding the cases because there had occurred “substantial clarification and refinement in the positions of the parties” once the case was before the Supreme Court. It also noted the “gravity of the dispute” at hand.

Reading into the decision

It is difficult to avoid some reading of the tea leaves in these remarks, even as the court claims it has settled nothing of substance. The “substantial clarification and refinement” in the parties’ positions concerned precisely the matter of whether or not there were less restrictive means for the government to deliver birth control and abortifacients to religious institutions’ employees. A reasonable person could be forgiven, therefore, for assuming that the court was at least sharply divided regarding whether the existing regulation constituted a least restrictive means satisfying RFRA.

One notably disappointing aspect of the court’s opinion should be highlighted. It is true that it made no finding regarding whether or not the state could prove a “compelling” interest in delivering free contraception and abortifacients to women and girls; however, several references in the opinion indicate a court strongly disinclined to investigate the robust evidence that contraception has neither reduced unintended pregnancies and abortions nor improved women’s physical or social health. At no point during any mandate litigation did this court acknowledge the billion-dollar lawsuits involving women injured by their contraception or the immiseration of women in a sex and mating marketplace shaped by contraception.

Going forward

Though the court’s opinion was issued on behalf of all eight members, Justices Sonia Sotomayor and Ruth Bader Ginsburg penned a concurring opinion designed to nudge the lower courts to tip the scales toward what they called “seamless” contraceptive coverage using religious institutions’ existing plans on the grounds that requiring even slight efforts by women to get free contraception are a burden too great. There is no doubt where these justices stand regarding the place of contraception in the pantheon of women’s rights. They are as sadly mistaken as they are unrelenting in this ideology.

Looking ahead, the federal government and objecting religious institutions could strike a deal. If they do not, appeals courts will hear these cases again — now with new information available from the supplemental briefs — regarding alternative means for delivering contraception to women and girls without the involvement of religious employers. Given the government’s blind devotion to contraception as the centerpiece of women’s freedom, the outcome is not certain. Still, Justices Sotomayor and Ginsburg notwithstanding, there is real hope that the federal government might take the hint and find a way to avoid violating the Little Sisters’ religious conscience.

Helen Alvaré is a law professor at George Mason University.