Opt-out option of the contraception mandate ok or not ok – the Supreme Court still refuses to decide.

Photo by GotCredit

As discussed in a prior article (Supreme Court Agrees to Review the Employer Contraception Opt-Out Option) the Supreme Court was to rule on the opt-out option of the contraception mandate of the Affordable Care Act and whether the option violated an employers’ religious freedoms.  On Monday, May 16, 2016, however, the Supreme Court of the United States sent the case back to the lower courts for the parties to work out a compromise.

Instead of deciding whether the opt-out option of the contraception mandate violates an employer’s religious freedoms by requiring the employer to opt in to the contraception mandate before opting out, the Supreme Court chose not to rule at all in hopes of the parties compromising.  The Supreme Court believes that the parties should be able to work out a compromise and “arrive at an approach.”

After oral arguments in March, the justices requested more briefs on the issue, which some believe suggests they were considering searching for a compromise for the parties.  Rather than deciding on a compromise themselves, the justices ordered the parties to consider their options and compromise on their own.  This recent decision can be seen as a punt, and can be seen as such even more due to the death of Justice Antonin Scalia, leaving the prospect of a 4-4 ruling on the issue.

The Supreme Court decided in Hobby Lobby’s favor years ago that the opt-out decision was the solution for the balance of providing contraception, but also allowing for religious freedoms.  It appears this decision allows for more deterioration of that decision in providing for the opportunity for yet another exception to the contraception requirement of the Affordable Care Act, and the risk of making null the requirement altogether.

What will be seen of a compromise between the parties is not certain, but if one can be reached the action would be historic.