The Supreme Court's Punt on the Contraception Mandate

The justices sent Zubik v. Burwell back to the lower courts—a move that means the issue is unlikely to be resolved until after the 2016 election.

Updated on May 16 at 12:06 p.m. ET

The U.S. Supreme Court sent a series of cases challenging the Affordable Care Act’s contraceptive mandate back to lower courts on Monday, effectively delaying a major ruling on religious freedom and women’s health until after the 2016 election.

The case, Zubik v. Burwell, combined seven separate challenges brought by religious nonprofits against a mandate that required them to provide coverage for birth control in their employee insurance plans. The act allowed the nonprofits to file a one-page form with the Department of Health and Human Services to opt out, but the nonprofits said this requirement also violated their religious beliefs.

Many observers expected the case to be a 5-4 decision, with Justice Anthony Kennedy casting the swing vote. But the death of Antonin Scalia on February 13 raised the specter of a 4-4 split. An unusual order last month asking the parties for rebriefing on a possible compromise seemed like a last-ditch attempt at avoiding deadlock.

That effort seems to have succeeded for now. In an unsigned decision, the Court remanded the cases back to the federal appellate courts and instructed them to reconsider the positions staked out in the new briefs.

“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’” the Court said in its five-page decision. “We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.”

At the same time, the justices stressed that their punt “expresses no view on the merits” of the case. In a separate concurrence joined by Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor underscored that stance by chastising the Eighth Circuit Court of Appeals, which cited last month’s Zubik orders in a recent decision despite the Court’s explicit instructions to the contrary. “On remand in these cases, the Courts of Appeals should not make the same mistake,” she added.

Her concurrence also reminded lower courts that Monday’s ruling did not endorse the nonprofits’ arguments either, including their position that a “separate policy, with a separate insurance process” would satisfy their religious-freedom claims.

“Such separate contraceptive-only policies do not currently exist, and the Government has laid out a number of legal and practical obstacles to their creation,” she noted.

In separate orders, the Court also remanded a series of similar cases challenging the mandate for rehearing by the lower courts. That includes Burwell v. Dordt College and Burwell v. CNS International Ministries, two cases from the Eighth Circuit where the court sided with the nonprofits; every other federal appellate court sided with the government.