Anyone still naïve enough to rely on the legacy media for unvarnished news will have gone to bed Monday evening believing that the Supreme Court evaded its duty regarding Little Sisters of the Poor v. Burwell. Countless headlines had declared that the Court decided to “punt,” “skirt,” or otherwise dodge any meaningful action concerning the challenge to the HHS contraception mandate. In reality, SCOTUS handed the Little Sisters and the other petitioners with whom the Court consolidated their case a major victory in their protracted battle to defend religious liberties against the depredations of the Obama administration’s bureaucrats and lawyers.
In a unanimous opinion, the justices vacated all lower court rulings against the Little Sisters and the other petitioners. The term “vacated,” in this context, means that the Court has rendered those adverse decisions legally void. And the justices didn’t stop there. In order to protect the petitioners from further financial harm, they informed the Obama administration that it “may not impose taxes or penalties on petitioners” pursuant to their continued refusal to abide by the contraception mandate or the so-called accommodation. Finally, the Court remanded the cases back to the relevant lower courts “for further proceedings consistent with this opinion.”
This is obviously an important win for the good guys. The senior counsel at the Becket Fund for Religious Liberty, which is defending the Little sisters, phrased it thus:
This is a game-changer. This unanimous decision is a huge win for the Little Sisters, religious liberty, and all Americans. The Court has accepted the government’s concession that it could deliver these services without the Little Sisters. The Court has eliminated all of the wrong decisions from the lower courts and protected the Little Sisters from government fines.
It is difficult to imagine how any objective observer could describe such an opinion as punting, skirting, dodging, or passing on the case.
Nonetheless, every one of the above-mentioned verbs can be found in the headlines of major publications and news services purporting to provide the facts about the Court’s opinion. Reuters ran an article titled, “Supreme Court dodges major decision on Obamacare birth control.” The Baltimore Sun covered the opinion in a story under the headline, “Supreme Court passes on contraception case.” The Week went with the following title: “SCOTUS declines to rule on ObamaCare contraceptive mandate challenge.” By far the most popular headline, however, was aped by Vox: “Supreme Court punts on the latest Obamacare birth control challenge.”
Most of these outlets justified such disingenuous headlines by glomming onto the following sentence, which was quoted or paraphrased in all of these stories: “The Court expresses no view on the merits of the cases.” But this has nothing to do with “dodging” the issue under dispute. It is instead the logical result of the Obama administration’s reluctant concession that it can, despite earlier claims to the contrary, accomplish the government’s “compelling interest” in making contraception products and services universally accessible without violating the petitioners’ religious rights as defined by the Religious Freedom Restoration Act (RFRA).
The Obama administration’s concession resulted from the Court’s request, shortly following oral arguments, for the litigants to file supplemental briefs “that address whether and how contraceptive coverage may be obtained by petitioners employees through the petitioners insurance companies in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage.” The order included a hypothetical scenario whereby this could be accomplished and asked the parties to opine on whether it, or something like it, would meet the needs of the government and the petitioners.
The Little Sisters of the Poor, whose lawyers had already suggested various alternatives to the mandate and the HHS accommodation, responded thus:
Yes. There are many ways in which the employees of a petitioner with an insured plan could receive cost-free contraceptive coverage through the same insurance company that would not require further involvement by the petitioner, including the way described in the Court’s order.
Predictably, the Obama administration’s supplemental brief made the claim that “the existing accommodation for employers with insured plans already contains all of the elements posited in this court’s order.”
After an excruciating amount of circumlocution and belaboring of irrelevant legalese, however, the government lawyers did finally concede that, “Because insurers have an independent statutory obligation to provide contraceptive coverage, the accommodation for employers with insured plans could be modified to operate in the manner described in the Court’s order.” Once that concession had been made, it was all over. It was no longer necessary to create the chaos that would have followed a 4-4 ruling on the merits, which would have included two sets of rules depending on the federal jurisdiction in which the nonprofit operates (see Dordt v. Burwell).
All the Court had to do, then, was remand the cases to the lower courts with the following admonition, “Both parties agree that there is enough flexibility in the law and the regulation to find a compromise, so fix it!” And that’s what the Court did on Monday. Despite the dishonest reporting of the “news” media, the Court hasn’t punted, skirted, dodged, or passed on anything. The Obama administration was forced to admit that it has wasted the Supreme Court’s time on something that could have been resolved at the district court level. But the government doesn’t want resolution. It wants obedience. And it certainly gets that from the media.
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