In a sure sign the Court was split 4-4 on the validity of the ObamaCare birth control mandate under RFRA, the Court today issued a per curiam order in Zubik v. Burwell remanding the consolidated cases to the circuit courts for reconsideration in light of the parties' supplemental briefs addressing "whether contraceptive coverage could be provided to petitioners' employees, through petitioners’ insurance companies, without any such notice from petitioners." The dispute in the case surrounds the private, religious employers' objection the birth control mandate's so-called "accommodation" that allows such employers to decline to pay for the objectionable insurance coverage but that allows their employees to nonetheless receive the coverage through the employers' health plans.
The Court's order provides: "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.'" Order at 4.
According to the order, a remand in these circumstances is not unusual. The order lists three recent cases in which the Court "has
taken similar action." Id.
The remand buys a divided Court time for the appointment of a ninth Justice who no doubt will be critical to the resolution of the cases. The circuits were originally split 5-1 on the issue presented in the cases, and some form of circuit split is likely to persist after the remand unless the parties reach agreement on an accommodation.
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