Another Supposed “ObamaCare-Ender” Likely Resolved — By Agreement

This morning, clearly taking pains NOT to issue a deadlocked 4-4 opinion, the United States Supreme Court issued a per curiam (unamimous) opinion in the so-called contraceptive cases — remanding all of them for additional proceedings in the lower courts — in the main because the Court itself, at and after argument earlier this year, was able to find a middle ground that both sides said would be a feasible and acceptable fix to the currently articulated dispute. [Update: I should have been clearer, in my commentary, at lunch-time — a deadlock here would have meant that in five of the six cases, the Obama/HHS’s position would prevail, and in the sixth, the petitioners’. And so, had that occured — in a question of purely federal law, the outcome might have differed, depending on where one lived. That would be an entirely non-sensical result, as the federal law is supposed to be uniform, nation-wide. And so, by clever questioning, and a gentle cajoling of the broad terms for a compromise, the Justices have all but ensured a uniform outcome: the requirement to provide coverage for contraceptives, for all women, at no additional cost, will very-likely now come from the same insurer, even where one’s employer is a religious affiliate that objects to such coverage. And that will be the case nation-wide, without the religious affiliate having to file any papers, to claim any exemption. That is a very fine resolution — as no one on the HHS/Obama side of the table wanted to impinge on sincerely-held religious beliefs — they simply wanted women to be truly free to choose — for free.]

As of this morning, the Supremes have asked the lower courts to oversee the working-out of that broad compromise. This is very clearly one more affirmative notch in the continuation of ObamaCare — and a good one. I think five of six appeals level courts held in favor of the HHS (i.e., the Obama) position on the question of access to birth control free of charge, for all women. And the religiously-affiliated employers — like schools, or hospitals, run by the Little Sisters of the Poor — have apparently agreed that if they provide insurance that DOES NOT include birth control coverage, but their employees obtain it for free (perhaps even from the same insurer, at the same time, on their own), the Sisters’ free exercise rights (under our First Amendment) are not noticably diminished. Here’s a bit from the very-learned Lyle Denniston, at SCOTUSblog.com:

. . . .[T]he Supreme Court on Monday. . . cleared the way for the government to promptly provide no-cost access to contraceptives for employees and students of non-profit religious hospitals, charities, and colleges, while barring any penalties on those institutions for failing to provide that access themselves. Thirteen separate cases were sent back to federal appeals courts for them to issue new rulings on the questions the Justices left undecided. One immediate issue is how soon the government can work out the technical arrangements to provide actual access to the contraceptive benefits.


The Court largely shifted to six federal appeals courts the task of ruling on the mandate’s legality — the task that the Court had agreed last November to take on itself in seven of the cases. Five appeals courts had ruled in favor of the mandate, and one had ruled against. All were ordered to re-think those outcomes in the wake of new positions that the two sides in the controversy had made in recent filings in the pending Supreme Court cases. . . .

It is unusual to see the nation’s highest court working out settlement proposals, but this is what inexorably happens — when the Republicans controlling the “advise and consent” process for appointing a new Justice simply shirk their constitutional duties. Our highest court (ever resourceful, on its own quite considerable initiative) then starts to resort to “trial court” level tactics, to avoid a forever riven 4 to 4 deadlock, on a major issue.

In passing, I will also note that Justices Sotomayor and Ginsberg concurred and offered the following admonishment (aimed at one of the federal District courts — ouch!): “. . .Yet some lower courts have ignored [our] instructions. . . . (“[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than [existing regulations] yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests”). On remand in these cases, the Courts of Appeals should not make the same mistake. . . .” Ooh! — that will leave a mark.

It shouldn’t escape notice that these two Justices (both women), signing the concurrence are. . . sending a very clear corallary warning, here: when the Court says the free contraceptive provision is constitutional, and thus must be available to all women — as the ACA of 2010 specifically contemplates — then that is precisely what must happen [i.e., no more trying to chip away at that right, by saying in effect “oh, some less onerous procedure will do. . . .”] Now you know.

Sending the last college son back north, by train, after a great weekend. . . all smiles here. . . .

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