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Supreme Court Punts on HBU's Birth Control Case, Sends Back to Lower Courts

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Houston Baptist University and several other religious organizations across the country were asking the U.S. Supreme Court to exempt them entirely from having to provide their employees contraceptives through insurance. But on Monday, the Supreme Court decided not to issue an opinion at all, instead leaving lower courts to sort it out themselves.

Petitioners in the case, including Houston Baptist University and East Texas Baptist University, took issue with a provision in the Affordable Care Act that the Obama administration says allows them to side-step directly providing employees birth control on insurance plans if they simply write a quick note to the feds stating that, because of their religious beliefs, they do not condone birth control. Once employers write up that note, then the feds will step in and work with the insurance company or some other third party—leaving the religious employer completely out of it—to see that the woman can still access contraceptives, as required under Obamacare. 

But petitioners like HBU asserted it still violated the Religious Freedom Restoration Act. Since they were still a cog in the wheel—still required to write these letters in which they blatantly denounce contraceptives—they believed they were still “guilty by association," since their employees were still ultimately able to access contraceptives and not get pregnant. They still believed it was a moral sin, and were asking the Supreme Court to exempt them from contraceptive coverage entirely, leaving their employees to seek it elsewhere. (Further, they really believe it's a moral sin because they think that emergency contraceptives like the morning-after pill induce abortion, which studies have shown is false.)

Instead, the Supreme Court is sending the case back down to appeals courts.

The court heard oral arguments in March, and at that time, justices already appeared split on the issue anyway. As the Texas Tribune reported, conservative Chief Justice John Roberts, appearing to support the petitioners, said that “they think complicity is sinful,” and Justice Anthony Kennedy suggested perhaps the federal government could find another way to provide the coverage without the religious employers' involvement at all.

In yesterday's opinion, Justice Sonia Sotomayor explained why forcing women to either find some other insurance plan so they could access contraceptives, or just paying for it themselves, was against the Affordable Care Act and not feasible.

“Requiring standalone contraceptive-only coverage would leave in limbo all of the women now guaranteed seamless preventive-care coverage under the Affordable Care Act,” she wrote. “And requiring that women affirmatively opt into such coverage would 'impose precisely the kind of barrier to the delivery of preventive services that Congress sought to eliminate.'”

It's not a ruling, though, and she clarified that lower appeals courts will have to work toward a “resolution” between the parties on their own. And that might be an uphill battle for HBU and East Texas Baptist, given that their respective U.S. Fifth Court of Appeals, considered the most conservative appeals court in the country, already voted against them, saying that Obama's provision, allowing them to opt out of coverage by writing a letter, was good enough.

Had the Supreme Court actually voted and ended up divided 4-4, it would not have mattered much for Texas, given the Fifth Court's ruling would have been upheld.

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