SCOTUS Issues Non-Ruling in Zubik v. Burwell


By Hadley Heath

Today the Supreme Court issued this unsigned opinion in Zubik v. Burwell, the consolidated case brought by religious non-profits to challenge the Affordable Care Act's birth control mandate. The opinion essentially sends the issue back to lower (appellate) courts, with instructions to find a compromise agreeable to all parties. 

This opinion represents an important victory for the petitioners. With the passing of Justice Scalia, there were few likely outcomes that would have served the law's challengers better than this one. The most likely outcome would have been a 4-4 rulling, which would have allowed the lower courts' rulings to stand. Most of the lower courts had sided with the federal government. But today's opinion vacates those prior rulings and instructs the 3rd, 5th, 10th, and D.C. Circuits to try again.

From the opinion:

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, 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."


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