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Supreme Court Sends Obamacare Contraception Case Back To Lower Courts


Today the U.S. Supreme Court avoided making a decision on birth control coverage for employees. This is the coverage guaranteed under the Affordable Care Act. Instead of resolving a clash between religious objectors and the law, the Court said there's the possibility of a compromise, so it unanimously booted the case back down to the lower courts. The justices gave instructions to take sufficient time for the two sides to work it out.

To talk through what happened, NPR legal affairs correspondent Nina Totenberg is in the studio. And Nina, if you had to write a headline for this story, what would it be?

NINA TOTENBERG, BYLINE: The justices punted. You know, Audie, I don't want to be flip about this, but they said to the parties, you folks negotiate for now, and the appeals courts below can deal with this problem for now; and then you can come back here later - much later.

CORNISH: So give us a little more detail. What was this case all about?

TOTENBERG: Well, the Affordable Care Act, among other things, seeks to deal with one of the major health care costs for women - birth control. It requires all employers who provide health insurance to include free contraception coverage for their employees. Religiously affiliated nonprofits like universities, hospitals and charitable organizations can opt out by notifying either the government or their insurer of their objections. The government then works with the insurer to provide the coverage independently.

The opt-out provision was added to the health care law as an attempt to accommodate the objections of some religious nonprofits, but it didn't go far enough for them. They contended that notifying the government or the insurer of their objections would make them enablers of birth control via a different route. They want to be completely exempt, to be treated the same way that houses of worship are treated, meaning that their employees and, in the case of universities, their students would have no birth control coverage.

CORNISH: So those religious nonprofits that rejected this go to the court, and they lost in most places, right?

TOTENBERG: They lost in 8 out of 9 appeals courts. But one ruled in their favor, so there was a conflict. And the Supreme Court agreed to resolve the issue. After the death of Justice Antonin Scalia, however, that turned out to be very difficult, and the court looked as though it might be headed for a 4 to 4 tie.

Less than a week after the oral argument in the case, the justices floated a compromise idea - no written notification and a package of free birth control coverage from the same insurer. The court asked the two sides to file briefs responding to its suggestions.

What it got back was less than totally enthusiastic, especially from the government which warned of important practical problems. Nevertheless, today, in an unsigned unanimous opinion, the court chose to treat those responses in the rosiest of fashions. The court then sent all the birth-control cases - and I think there are now 17 of them - back to the lower courts with the instruction to look for a way to better reconcile religious objections with the need to provide free birth control coverage for women who work at religiously affiliated universities, hospitals, charities...


TOTENBERG: ...Et cetera.

CORNISH: Sounds like a tall order.


CORNISH: So is there another agenda here?

TOTENBERG: Well, probably there are many agendas. First is the court's desire to avoid a 4 to 4 tie which lets stand the judgment of the lower court, meaning that in this case, for instance, there would not have been one legal rule for the whole country.

Another is Justice Anthony Kennedy, who would've been a fifth vote if he sided with the court's liberals in this case or, if he went the other way, a fourth vote for a tie. And he seemed very torn at oral argument. And third, this is an eight-justice court with a big, fat vacancy. And today's action ensures that nothing will be decided by the time of the election.

CORNISH: Wait, so what does that mean - that really nothing will be decided before the election?

TOTENBERG: Well, in the starkest terms, if Donald Trump wins, he says he'll fill the ninth seat with a conservative, and the court likely would strike down the birth control mandate as a violation of religious rights. If, on the other hand, the Democratic nominee wins, then the pendulum swings to women's reproductive rights and the government's right to legislate to protect women's health.

CORNISH: So what did the court actually decide today?

TOTENBERG: It was extremely explicit about that. It said it was deciding nothing. And in the meantime, the coverage continues as it is today.

CORNISH: That's NPR's Nina Totenberg. Nina, thanks so much.

TOTENBERG: Thank you, Audie. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.