Zubik v. Burwell , 136 S. Ct. 1557 ( 2016 )

(Slip Opinion) Cite as: 578 U. S. ____ (2016) 1
Per Curiam
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________
DAVID A. ZUBIK, ET AL., PETITIONERS
14–1418 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
PRIESTS FOR LIFE, ET AL., PETITIONERS
14–1453 v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,
ET AL., PETITIONERS
14–1505 v.
SYLVIA BURWELL, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
EAST TEXAS BAPTIST UNIVERSITY, ET AL.,
PETITIONERS
2 ZUBIK v. BURWELL
Per Curiam
15–35 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
LITTLE SISTERS OF THE POOR HOME FOR
THE AGED, DENVER, COLORADO, ET AL.,
PETITIONERS
15–105 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
SOUTHERN NAZARENE UNIVERSITY, ET AL.,
PETITIONERS
15–119 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.; AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
GENEVA COLLEGE, PETITIONER
15–191 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 16, 2016]
Cite as: 578 U. S. ____ (2016) 3
Per Curiam
PER CURIAM.
Petitioners are primarily nonprofit organizations that
provide health insurance to their employees. Federal
regulations require petitioners to cover certain contracep-
tives as part of their health plans, unless petitioners
submit a form either to their insurer or to the Federal
Government, stating that they object on religious grounds
to providing contraceptive coverage. Petitioners allege
that submitting this notice substantially burdens the
exercise of their religion, in violation of the Religious
Freedom Restoration Act of 1993, 107 Stat. 1488, 42
U.S. C. §2000bb et seq.
Following oral argument, the Court requested supple-
mental briefing from the parties addressing “whether
contraceptive coverage could be provided to petitioners’
employees, through petitioners’ insurance companies,
without any such notice from petitioners.” Post, p. ___.
Both petitioners and the Government now confirm that
such an option is feasible. Petitioners have clarified that
their religious exercise is not infringed where they “need
to do nothing more than contract for a plan that does not
include coverage for some or all forms of contraception,”
even if their employees receive cost-free contraceptive
coverage from the same insurance company. Supple-
mental Brief for Petitioners 4. The Government has con-
firmed 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.” Supple-
mental Brief for Respondents 14–15.
In light of the positions asserted by the parties in their
supplemental briefs, the Court vacates the judgments
below and remands to the respective United States Courts
of Appeals for the Third, Fifth, Tenth, and D. C. Circuits.
Given the gravity of the dispute and the substantial clari-
4 ZUBIK v. BURWELL
Per Curiam
fication 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 contra-
ceptive coverage.” Id., at 1. We anticipate that the Courts
of Appeals will allow the parties sufficient time to resolve
any outstanding issues between them.
The Court finds the foregoing approach more suitable
than addressing the significantly clarified views of the
parties in the first instance. Although there may still be
areas of disagreement between the parties on issues of
implementation, the importance of those areas of potential
concern is uncertain, as is the necessity of this Court’s
involvement at this point to resolve them. This Court has
taken similar action in other cases in the past. See, e.g.,
Madison County v. Oneida Indian Nation of N. Y., 562
U.S. 42, 43 (2011) (per curiam) (vacating and remanding
for the Second Circuit to “address, in the first instance,
whether to revisit its ruling on sovereign immunity in
light of [a] new factual development, and—if necessary—
proceed to address other questions in the case consistent
with its sovereign immunity ruling”); Kiyemba v. Obama,
559 U.S. 131, 132 (2010) (per curiam) (vacating and re-
manding for the D. C. Circuit to “determine, in the first
instance, what further proceedings in that court or in the
District Court are necessary and appropriate for the full
and prompt disposition of the case in light of the new
developments”); Villarreal v. United States, 572 U. S. ___
(2014) (vacating and remanding to the Fifth Circuit “for
further consideration in light of the position asserted by
the Solicitor General in his brief for the United States”).
The Court expresses no view on the merits of the cases.
In particular, the Court does not decide whether petition-
ers’ religious exercise has been substantially burdened,
Cite as: 578 U. S. ____ (2016) 5
Per Curiam
whether the Government has a compelling interest, or
whether the current regulations are the least restrictive
means of serving that interest.
Nothing in this opinion, or in the opinions or orders of
the courts below, is to affect the ability of the Government
to ensure that women covered by petitioners’ health plans
“obtain, without cost, the full range of FDA approved
contraceptives.” Wheaton College v. Burwell, 573 U. S.
___, ___ (2014) (slip op., at 1). Through this litigation,
petitioners have made the Government aware of their
view that they meet “the requirements for exemption from
the contraceptive coverage requirement on religious
grounds.” Id., at ___ (slip op., at 2). Nothing in this opin-
ion, or in the opinions or orders of the courts below, “pre-
cludes the Government from relying on this notice, to the
extent it considers it necessary, to facilitate the provision
of full contraceptive coverage” going forward. Ibid. Be-
cause the Government may rely on this notice, the Gov-
ernment may not impose taxes or penalties on petitioners
for failure to provide the relevant notice.
The judgments of the Courts of Appeals are vacated, and
the cases are remanded for further proceedings consistent
with this opinion.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 14–1418, 14–1453, 14–1505, 15–35, 15–105, 15–119, and 15–191
_________________
DAVID A. ZUBIK, ET AL., PETITIONERS
14–1418 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
PRIESTS FOR LIFE, ET AL., PETITIONERS
14–1453 v.
DEPARTMENT OF HEALTH AND HUMAN
SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
ROMAN CATHOLIC ARCHBISHOP OF WASHINGTON,
ET AL., PETITIONERS
14–1505 v.
SYLVIA BURWELL, SECRETARY OF HEALTH
AND HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
EAST TEXAS BAPTIST UNIVERSITY, ET AL.,
PETITIONERS
15–35 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
2 ZUBIK v. BURWELL
SOTOMAYOR, J., concurring
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
LITTLE SISTERS OF THE POOR HOME FOR
THE AGED, DENVER, COLORADO, ET AL.,
PETITIONERS
15–105 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.;
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
SOUTHERN NAZARENE UNIVERSITY, ET AL.,
PETITIONERS
15–119 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.; AND
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
GENEVA COLLEGE, PETITIONER
15–191 v.
SYLVIA BURWELL, SECRETARY OF HEALTH AND
HUMAN SERVICES, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
[May 16, 2016]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, concurring.
I join the Court’s per curiam opinion because it expresses
no view on “the merits of the cases,” “whether petition-
Cite as: 578 U. S. ____ (2016) 3
SOTOMAYOR, J., concurring
ers’ religious exercise has been substantially burdened,” or
“whether the current regulations are the least restrictive
means of serving” a compelling governmental interest.
Ante, at 4–5. Lower courts, therefore, should not construe
either today’s per curiam or our order of March 29, 2016,
as signals of where this Court stands. We have included
similarly explicit disclaimers in previous orders. See, e.g.,
Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his
order should not be construed as an expression of the
Court’s views on the merits”). Yet some lower courts have
ignored those instructions. See, e.g., Sharpe Holdings,
Inc., v. Department of Health and Human Servs., 801 F.3d
927, 944 (CA8 2015) (“[I]n Wheaton College, Little Sisters
of the Poor, and Zubik, the Supreme Court approved a
method of notice to HHS that is arguably less onerous
than [existing regulations] yet permits the government to
further its interests. Although the Court’s orders were not
final rulings on the merits, they at the very least collec-
tively constitute a signal that less restrictive means exist
by which the government may further its interests”). On
remand in these cases, the Courts of Appeals should not
make the same mistake.
I also join the Court’s opinion because it allows the
lower courts to consider only whether existing or modified
regulations could provide seamless contraceptive coverage
“ ‘to petitioners’ employees, through petitioners’ insurance
companies, without any . . . notice from petitioners.’ ”
Ante, at 3. The opinion does not, by contrast, endorse the
petitioners’ position that the existing regulations substan-
tially burden their religious exercise or that contraceptive
coverage must be provided through a “separate policy,
with a separate enrollment process.” Supp. Brief for
Petitioners 1; Supp. Reply Brief for Petitioners 5. Such
separate contraceptive-only policies do not currently exist,
and the Government has laid out a number of legal and
practical obstacles to their creation. See Supp. Reply Brief
4 ZUBIK v. BURWELL
SOTOMAYOR, J., concurring
for Respondents 3–4. Requiring standalone contraceptive-
only coverage would leave in limbo all of the women now
guaranteed seamless preventive-care coverage under the
Affordable Care Act. And requiring that women affirma-
tively opt into such coverage would “impose precisely the
kind of barrier to the delivery of preventive services that
Congress sought to eliminate.” Id., at 6.
Today’s opinion does only what it says it does: “afford[s]
an opportunity” for the parties and Courts of Appeals to
reconsider the parties’ arguments in light of petitioners’
new articulation of their religious objection and the Gov-
ernment’s clarification about what the existing regulations
accomplish, how they might be amended, and what such
an amendment would sacrifice. Ante, at 4. As enlightened
by the parties’ new submissions, the Courts of Appeals
remain free to reach the same conclusion or a different one
on each of the questions presented by these cases.