Shorthanded Supreme Court Punts on Key Contraception Case, Postpones Decision Until After Election

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Supreme Court Hears Arguments In The Obamacare Contraception Case
Supreme Court declines to give the Little Sisters of the Poor, or any other religious nonprofit, the plenary right to avoid all cooperation with the contraception-coverage mandate.Photo: Drew Angerer/© 2016 Bloomberg Finance LP

It’s the case everyone is calling Little Sisters of the Poor because conservatives shrewdly decided that the famed religious order was their best front in the fight against Obamacare’s contraception-coverage mandate — even better than Hobby Lobby! In reality, the Supreme Court dealt today with seven cases bubbling up from four circuits involving efforts by religious nonprofit groups to avoid any obligation to cooperate with the federal government’s “work-around” aimed at giving their employees contraception coverage without the objecting employer having to pay for or arrange it. 

We’ll probably never know if the Court might have decided the cases on the merits had Antonin Scalia still been alive. As it stands, SCOTUS issued a brief, unsigned per curiam opinion remanding all these cases to lower courts for further fact-finding on possible ways the feds and the nonprofits’ insurers might get the job done with minimal involvement from the nonprofits themselves. The opinion very clearly disclaims any more substantive determination, but, just to make sure, Justice Sotomayor (joined by Justice Ginsberg) issued a concurring opinion instructing opponents of the mandate not to read anything else into the decision. 

Even then, lawyers for the Little Sisters claimed partial victory on the grounds that the decision prevents the Obama administration from levying fines on non-complying religious nonprofits while they seek a better “work-around.” But that’s a fig leaf. In effect, the Court put the whole issue on hold long enough that when the lower-court litigation comes to fruition the administration involved will almost certainly be a Clinton or Trump administration.  And by the time appeals are filed and heard, SCOTUS will probably be back to full strength with a new liberal or conservative justice. Like so many big issues, resolution of the fight over the Obamacare contraception-coverage mandate will await November’s general election, when the federal government will either move straight ahead from its path under Obama or veer dramatically in a different direction.