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Justices, Seeking Compromise, Return Contraception Case to Lower Courts

Demonstrators held signs outside of the Supreme Court building in Washington on March 23 as the justices heard arguments in the Zubik v. Burwell case.Credit...Zach Gibson/The New York Times

WASHINGTON — The Supreme Court, in an unsigned unanimous opinion, announced on Monday that it would not rule in a major case on access to contraception, and instructed lower courts to consider whether a compromise was possible.

The opinion is the latest indication that the Supreme Court, which currently has eight members, is exploring every avenue to avoid 4-to-4 deadlocks, even if it does not decide the question the justices have agreed to address.

The case concerned an accommodation offered to religious groups that did not want to offer insurance coverage for contraception to their female employees as ordinarily required by regulations under the Affordable Care Act. The accommodation allowed the groups not to pay for coverage and to avoid fines if they informed their insurers, plan administrators or the government that they wanted an exemption. Insurance companies or the government would then pay for the coverage.

Some religious groups objected, saying that providing the required notice still made them complicit in what they considered to be sinful conduct.

The court’s unusual opinion tried to bridge the gap between the two sides, suggesting that the government could arrange to provide coverage to the religious groups’ female workers without requiring any notice or other action from the groups. Such a solution would require the two sides to agree on many details and would probably require new federal regulations.

The justices’ decision to insert themselves into the adversarial process, acting more like mediatiors than judges, was almost certainly a consequence of the disarray that followed Justice Antonin Scalia’s death in February. Since then, the court has deadlocked three times, including in a major case on public unions. In other cases, it has found consensus through narrow rulings, some of which decided very little.

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White House on Supreme Court Ruling

After the Supreme Court’s decision to send the case on contraception access back to the lower courts, the White House press secretary explained that the ruling did not mean that the health insurance of female employees was in danger.

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After the Supreme Court’s decision to send the case on contraception access back to the lower courts, the White House press secretary explained that the ruling did not mean that the health insurance of female employees was in danger.CreditCredit...Pablo Martinez Monsivais/Associated Press

Monday’s opinion nullified decisions in appeals courts around the nation, all but one of which had upheld the accommodation. Both sides said they were pleased.

“The Supreme Court was right to protect the Christian colleges and other groups from having to pay fines or fill out forms authorizing the objectionable coverage,” said David Cortman, a lawyer with Alliance Defending Freedom, which represents some of the groups challenging the accommodation. “The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions.”

The White House also said it welcomed the decision.

“It will allow millions of women across the country to continue to get the health coverage that they need,” Josh Earnest, the press secretary, told reporters. He said the White House was “gratified” because the decision proved it was possible to prioritize health care access while maintaining religious liberty for everyone.

President Obama, in an interview with BuzzFeed News, said the opinion was notable for what it said about the state of the Supreme Court. “I won’t speculate as to why they punted,” he said, “but my suspicion is that if we had nine Supreme Court justices instead of eight, there might have been a different outcome.”

Republican senators have said they will not confirm another of Mr. Obama’s Supreme Court nominees.

The court signaled its direction less than a week after the case was argued in March, when it issued an unsigned order asking the parties to submit supplemental briefs on a possible compromise. In Monday’s ruling, the court said that those briefs suggested a compromise was possible but that it should be forged in the lower courts.

“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,’ ” the court said, quoting from a brief filed by the government.

The Supreme Court urged the lower courts to “allow the parties sufficient time to resolve any outstanding issues between them.”

The justices emphasized that they were deciding nothing.

“The court expresses no view on the merits of the cases,” the opinion said. “In particular, the court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”

Justice Sonia Sotomayor filed a concurrence, which was joined by Justice Ruth Bader Ginsburg, underscoring the limited nature of the action and cautioning lower courts not to read anything into it.

“Today’s opinion does only what it says it does: ‘affords 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 government’s clarification about what the existing regulations accomplish, how they might be amended and what such an amendment would sacrifice,” Justice Sotomayor wrote. “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.”

The case, Zubik v. Burwell, No. 14-1418, was the court’s second encounter with the contraception requirement and the fourth time it had considered an aspect of the Affordable Care Act. It built on a case from 2014, Burwell v. Hobby Lobby Stores, which said a regulation requiring family-owned corporations to pay for insurance coverage for contraception violated a federal law protecting religious liberty. Justice Samuel A. Alito Jr., writing for the majority in 2014, said there was a better alternative, one that the government had offered to nonprofit groups with religious objections.

Many religious groups around the nation challenged the accommodation, saying that objecting and providing the required information would make them complicit in conduct that violated their faith.

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Nuns outside the Supreme Court in March before arguments in Zubik v. Burwell. On Monday, justices declined to rule in the case.Credit...Jim Lo Scalzo/European Pressphoto Agency

The groups, which include hospitals and schools, added that they should be entitled to the outright exemption offered to houses of worship like churches, synagogues and mosques. Houses of worship are not subject to the coverage requirement at all and do not have to file paperwork if they choose not to provide contraception coverage.

At the arguments in March, several justices indicated that they thought the accommodation violated the federal Religious Freedom Restoration Act because it allowed the government to “hijack” the insurance plans of the religious groups that were the petitioners in the case.

Days later, the court called for more briefs in an order that asked the parties to “address whether and how contraceptive coverage may be obtained by petitioners’ employees through petitioners’ insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees.”

The order sketched out how this might work, asking the two sides to address whether it would be acceptable for the groups to do no more than buy insurance plans for their workers that did not include contraception coverage.

On Monday, the court said that the unusual tactic had worked and that both sides “now confirm that such an option is feasible.”

The religious groups, the court said, quoting their brief, “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.”

“The government,” the court continued, “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.’ ”

Julie Hirschfeld Davis contributed reporting.

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A version of this article appears in print on  , Section A, Page 1 of the New York edition with the headline: Court Sidesteps Contraception, Avoiding a Tie. Order Reprints | Today’s Paper | Subscribe

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