Articulating his view of judicial restraint during an address to Georgetown University law graduates in 2006, Chief Justice John Roberts said that the Supreme Court should keep its rulings limited strictly to the issues squarely before it, because, as he put it, “if it is not necessary to decide more to a case ... it is necessary not to decide more.” That doctrine of avoidance goes double for cases in which it is impossible for the court to decide anything at all — or so it would seem based on the justices’ hyper-cautious disposition Monday of a controversial case involving religious-freedom objections to the contraceptive mandate under the Affordable Care Act.
Certain religiously affiliated nonprofit groups that provide health insurance coverage to their workers object to a workaround the government devised to accommodate their theological opposition to contraception. In essence, it would allow groups that fill out a written notification form to have their employees obtain contraception coverage through a separate insurance account. However, the groups argued that even that minimal step forced them actively to promote a process that ends in the provision of contraception, thus imposing a “substantial” burden on their free exercise of religion.
We thought, and still think, that the religious groups were expressing serious concerns but that their legal claim was a stretch — and that the Obama administration has the better argument, based on ensuring equal health care for women. Four of the five federal appeals courts to consider the matter agreed. However, the eight-member Supreme Court found itself deadlocked after Justice Antonin Scalia’s death.
At that point, the justices took an unusual but creative step, issuing an order that laid out a possible compromise solution and asking the parties to the case to file briefs commenting on it. The court’s suggestion, in essence, was that religious objectors could trigger the workaround not by filling out a government form, but by notifying insurers that they do not want contraceptives included in their group plans, whereupon the insurers would contact employees to offer them coverage. The religious groups signaled support for such an alternative, and the Obama administration said it could not be ruled out.
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We’re all for it, too — as long as the end result still facilitates unhindered access to birth control coverage for those who need it.
Monday’s brief, unsigned Supreme Court opinion throws out the lower-court opinions and gives them another shot at the litigation, without any ruling by the justices on the legal issue at the heart of it. The court’s opinion pointedly noted that the do-over gives both the administration and the religious organizations an “opportunity” to work out a compromise, either along the lines the court itself sketched or some variation thereof. In short, the court dropped a big hint that this matter might be best dealt with through a less polarized, and polarizing, process. We hope the parties take advantage.
The above editorial appeared in The Washington Post.