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Deciding Not to Decide



As the oral arguments suggested, none of the Republican nominees were willing to endorse the latest round of accommodations the Obama administration made to religious employers so that their employees would receive the contraceptive coverage to which they’re entitled, so they just punted back to the lower courts without deciding anything:

The cases have come to the Court as a result of its 2014 opinion Hobby Lobby v. Burwell. In that case, the Court (unpersuasively) held that the contraceptive mandate constituted a “substantial burden” on the religious freedom of religious employers and that therefore the federal government had to find a less burdensome way of ensuring that women were provided with contraceptive coverage as part of their employer-provided health insurance packages. As the dissenters predicted, the opinion created a mess in which religious employers continued to find accommodations inadequate. Most, but not all, of the federal circuit courts to have heard this latest round of challenges have held that the new accommodations are consistent with the freedoms guaranteed to employers by the Religious Freedom Restoration Act.

Resolving this kind of split among circuit courts is the Supreme Court’s job. But, thanks to Senate Republicans who refuse to give a hearing to Merrick Garland, President Obama’s pick to replace Scalia, in many cases the Court is unable to perform it. The result is opinions like Zubik, in which the nation’s top appellate court does not so much decide a case as beg litigants and lower courts to resolve the disputes so that they don’t have to.

Rather than just uphold the opinions of the lower courts — which would have allowed affected women in most of the country to immediately start receiving the coverage to which they’re legally entitled — the Supreme Court vacated these opinions. In the next round of litigation, “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.'”

In theory, this sounds reasonable. But, in practice, it is unlikely to work. These cases came to the Supreme Court in the first place precisely because the employers and the government fundamentally disagree about what constitutes a reasonable compromise between the religious freedom of employers and the right of employees to “receive full and equal health coverage, including contraceptive coverage.” It seems unlikely that the Supreme Court begging them to try again will solve the problem. And indeed, one suspects the point is not so much to facilitate a compromise as to punt the issue until after the presidential election in November.


The ongoing uncertainty is far from ideal. The fact that even Justice Anthony Kennedy was unwilling to accept the reasonable compromises offered by the government, however, makes it clear that things could have been even worse. Had Antonin Scalia been alive to hear the case, it seems clear that there would have been a 5-4 vote against the government. Postponement is better for people who believe that religious employers should not be able to obstruct the rights of their employees than an outright loss.

Ultimately, then, the placement of this dispute over contraceptive coverage into ongoing legal purgatory is yet another reminder of what’s at stake in the upcoming elections. If Hillary Clinton wins with a Democratic Senate majority, the right of female employees to receive equal health insurance coverage in these cases will be upheld. If Donald Trump wins, this is one of the many ways in which the reproductive freedom of American women will be diminished. And if Hillary Clinton wins but Republicans hold the Senate, expect a lot more cases in which the Supreme Court is unwilling or unable to decide.

With respect to Tony Kennedy and his crying-while-eating-the-oysters “no, really I don’t hate women and support their right to contraceptive access despite having held here that a trivial burden on employers justifies them imposing their religious beliefs on their employees and obstructing their statutory rights because surely there’s another way the government can do this” concurrence in Hobby Lobbyover to you, Prof. Tushnet. I mean, how many of these shell games does AMK have running right now? “There is theoretically a way that employees can maintain their right to contraceptive coverage from religious employers, even if I can never find one in practice, no matter how insubstantial the burden on employers is.” “There is theoretically a way in which local governments can take race into account to integrate their schools, but not even using it as a tiebreaker when giving scarce slots to equally qualified students.” “Searching for a regulation that is actually an “undue burden” on abortion since 1992.” At least with Alito or Thomas, you don’t get the pretense.

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