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Absent a ninth justice to presumably cast a deciding vote, the Supreme Court told Health and Human Services (HHS) and various religious employers challenging HHS’s contraceptive mandate accommodation to head back to the negotiating table.

As described in our recent white paper, the Affordable Care Act (ACA) contraceptive mandate has been subject to numerous challenges by religious employers over the last several years. The hope was that the Supreme Court would finally settle the dispute with a definitive ruling by midyear.

[pullquote align=”left” cite=”” link=”” color=”” class=”” size=””]The Court’s recent decision delays for another day a final resolution.[/pullquote]

The Court’s recent decision delays for another day a final resolution. As a result, much uncertainty remains for religious employers, women covered by their health plans, the government, insurers and third-party administrators.

In March, following Justice Scalia’s passing, an apparently evenly divided Court asked the parties whether they thought it was possible to develop a process that ensured women had access to no-cost contraceptives without infringing on the employer’s religious beliefs.

All parties expressed optimism that a solution could be found. For an insured plan, it appears the solution would be to allow the sale of insurance products without coverage for the objected-to contraceptives. In that case, the mere purchase of such a plan would put the carrier on notice to seamlessly provide the objected-to contraceptives to women covered under the plan—of course, at no cost to the employer or covered women.

The specifics of this proposal are to be worked out by the parties with the help of the lower courts. Presumably, a process will also be developed for self-funded employers that object to some or all contraceptives.

Where Does this Leave Us?

Any settlement worked out by HHS and the objecting employers will be limited to the involved parties. We imagine that any settlement reached will be incorporated in new HHS guidance to ensure a comprehensive process that is applicable to all religious employers—including those that have not yet sued HHS.

Lockton Comment: The cases the court remanded were brought by non-profit religious employers. There is another line of cases brought by for-profit religious employers. While not certain, we imagine any rule developed by HHS in light of the most recent ruling for non-profit religious employers will also be applied to for profit-religious employers.

The devil is in the details, and we imagine religious employers might still find devils in any rule established by HHS. Accordingly, we expect that this is not the last time the Supreme Court will weigh in on the contraceptive mandate.