Scalia’s Death Just Saved Thousands Of Women’s Access To Birth Control


Zubik v. Burwell was supposed to be an epic showdown over the power of religious objectors to limit the rights of others. A sequel to the Court’s 2014 decision in Burwell v. Hobby Lobby, Zubik involved regulations expanding women’s access to birth control that the conservative justices appeared to endorse in Hobby Lobby — even as they struck down a more direct method of providing contraceptive coverage to working women.

At oral arguments, however, the four remaining conservatives seemed to have a change of heart. Even Justice Anthony Kennedy, the justice who signaled the loudest in Hobby Lobby that he would tolerate the kind of regulations at issue in Zubik, appeared openly hostile towards the Obama administration’s arguments. The case seemed to be barreling towards a 4–4 non-decision. If conservative Justice Antonin Scalia had not died last February, it is all but certain that the case would have ended in a crushing defeat for the administration and for many women who hoped to benefit from the administration’s birth control rules.

But that’s not going to happen — at least not yet. On Monday, the Supreme Court handed down a brief, three-page opinion that effectively punts the case until next year at the earliest (and, presumably, after someone has been confirmed to fill Justice Scalia’s seat). The opinion explicitly “expresses no view on the merits” of Zubik and a raft of related cases. Instead, it sends these cases back down to the lower courts to consider the views expressed by both parties in supplemental briefing requested by the justices themselves.

Since oral arguments in Zubik last March, the eight-justice Court groped around in an unusually public way for some kind of compromise that could allow them to dispose of the case with something other than a 4–4 split. The particular regulations at issue in Zubik require most employers to include birth control coverage in their employer-provided health plans, but they also permit employers with a religious objection to contraception to exempt themselves from this requirement by filing out a two-page form. In most cases, the company’s insurer will then contract directly with its women employees to provide them with contraceptive coverage.


Though four justices appeared likely to object to these rules after oral argument, the Court issued an unusual order the next week proposing a possible compromise. Instead of requiring the employer to fill out a form (or provide similar notice of its objection), what if the employer simply informed their insurer of their desire not to have birth control coverage for their employees? At that point, the insurer, “aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.”

The Court wants this case to go away, at least for now.

As it turns out, this tweak to the administration’s birth control rules could work for some, but not all, employers. As the Supreme Court notes in Monday’s opinion, the administration “has confirmed that the challenged procedures ‘for employers with insured plans could be modified to operate in the manner posited in the Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.’” However, that’s not the end of the story. The administration also explained to the Court that the justices’ proposed compromise may not work for employers that self-insure (that is, employers who pay out health claims directly to employees rather than joining them into a broader insurance pool).

In any event, the one thing that’s absolutely clear from the Court’s very brief, unsigned opinion in Zubik is that it will not resolve any of the nuances of how employers should exempt themselves, what should happen to women who seek birth control after an employer exempts itself, and whether self-insurance or other situations present unique problems that call for a distinct rule. The Court wants this case to go away, at least for now.

There are, however, a few lines in the opinion which may give some hope to women seeking birth control over the objections of their boss. “The parties on remand should be afforded an opportunity to arrive at an approach going forward,” the Court explains, “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.’”


What’s significant here is that the justices appear to be acknowledging that there are two competing interests of relatively equal weight at stake in this case — the rights of religious objectors to act in accordance with their faith and the right of women to receive the health care benefits they are entitled to under law. Prior to Hobby Lobby, it was well established that a religious objectors could not wield their faith to diminish the rights of third parties. Hobby Lobby, however, called this longstanding framework into question.

Zubik’s suggestion that any accommodation for religious objectors should also ensure “that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage’” is a step back in the direction of pre-Hobby Lobby law. It suggests that the Court may be willing to subject federal officials to administrative hassle if religious objectors rise up against a particular policy, but that the eventually goal of that policy must be honored if third parties stand to benefit from it.

Ultimately, however, this restored solicitude for the rights of women may not last once a new justice is confirmed. If that justice is inclined to vote with the four more liberal justices, then something similar to the fill-out-the-form option will most likely be upheld. If the new justice is more similar to Justice Scalia, however, then the Court could very well decide that it does not care about the rights of women seeking contraceptive care after all.