The Impact of Zubick v. Burwell, 578 U.S. __(2016) A Win, Win, Win and a Loss

Paul Clement, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito, Elena Kagan
This artist rendering shows Attorney Paul Clement speaks before the Supreme Court in Washington, Wednesday, March 28, 2012, during arguments on the constitutionality of President Barack Obama’s health care overhaul. Justices, from left are, Sonia Sotomayor, Stephen Breyer, Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan. (AP Photo/Dana Verkouteren)


The Impact of Zubick v. Burwell, 578 U.S. __(2016)

A Win, Win, Win and a Loss

Paul J. Nicholson*

            In a per curiam [1] opinion issued May 16, 2016 the Supreme Court of the United States vacated the judgments in the Circuit Courts of Appeals below and remanded the cases to the respective United States Court of Appeals for the Third, Fifth, Tenth and D.C. Circuits. In doing so the Court made it clear that it was not addressing the issues in the first instance, and that it was “expressing no view on the merits of the cases.”

This case involved the consolidation of seven cases.  The cases were each brought against Silvia Burwell Et  Al. the Secretary of Health and Human Services.  The seven named petitioners[2] were David Zubick Et  Al.[3]; Priests for Life Et Al.; Roman Catholic Archbishops of Washington; East Texas Baptist University;  Little Sisters of the Poor Home for the Aged; Denver Colorado; Southern Nazarene University and Geneva College.

The issue in the cases was whether the requirement that an organization which objected to paying for medical insurance which covered the cost of abortions was burdened in their religious expression under the terms of the Religious Freedom Restoration Act of 1993 by being required to file a statement claiming an exemption on the basis that they objected on religious grounds.  The Court did not rule on this issue but rather remanded[4] the cases after vacating[5] the judgments of the lower Courts with the suggestion that the “parties 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 petitioner’s health plans “receive full and equal health coverage, including contraception coverage.” And the Court added: “We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them.

After hearing oral arguments the Court requested that the parties file supplemental briefs addressing the question of “whether contraceptive coverage could be provided to petitioner’s employees, through petitioner’s insurance companies without any such notice from petitioners.”  And, in response the petitioner individual and organizations clarified that they do not feel their religious exercise is 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.” And the Government confirmed that the challenged procedure could be modified to operate in the manner required in the lower Court’s order while still ensuring that the affected women receive contraceptive coverage seamlessly, together with the rest of their health coverage.”

In other words the petitioners stated in their supplemental briefs that they did not feel their rights to be infringed upon if all they had to do was to obtain insurance for their employees which did not provide contraceptive coverage and the Government stated that the procedure requiring the filing of a notice requesting exemption could be modified to fit this situation.  The parties, therefore, indicated that they had substantially reached an agreement to settle the matter.

Therefore, this created a win, win, win situation.  Some of my colleagues, especially those representing religious organizations and causes, are arguing this constitutes a big win for the petitioners and that the petitioners forced the Obama Administration to back down from an onerous policy.  And, yes it is a win for the petitioners, but it is also a win for the Government, and especially a win for the Supreme Court which would not have been able to decide the case due to a most likely four to four split between those favoring the mandate and those opposed to it.

Through the device of requesting supplemental briefs the Court found an opening, a way to go, which would allow it to vacate the judgments in the Courts of Appeals without deciding all for the Government or all for the petitioners.  The parties showed through the briefs that they could agree on a resolution.

While this has proved to be a workable result in these cases there are reasons that this decision is not so much of a win for the constitution as a whole.  First, the Court refused to decide the substantive issue and that leaves the door open for future litigation.  Settlements reached between the parties will not bind future litigants or a future administration.  Second, the per curiam decision to remand the case did not settle potential future splits among the Circuit Courts of Appeals.  Any decisions entered in the Third, Fifth, Tenth and D.C. Circuits will not bind the First, Second, Fourth, Sixth, Seventh, Eighth, Ninth or Eleventh Circuits and leave each of those Courts to come up with their own determinations of how to resolve the issue.  Finally, the Justices are tacitly acknowledging their own impotency in being able to resolve important national legal issues.  The fear of a “tie vote” has rendered the Court useless as an instrument of Government.  The refusal of Congress to act on the President’s nomination of a Justice to replace Antonin Scalia has effectively sidelined the Court from the playing field of national policy and the Justices find themselves powerless to change that result except through the kind of procedural maneuvering exemplified in the per curiam.

It will be interesting to follow the course of future cases and see just how resourceful the Justices are in combating the ineffectiveness of their own institution. In the meantime those affiliated with religious organizations which faces heavy fines and penalties may take comfort that the Administration has as a matter of grace shown its willingness to rework its policies to accommodate religious freedom without the necessity of an actual decision from the Supreme Court of the United States.


  • BA Hendrix College, 1971; J.D. University of Arkansas 1974.

[1] A per curiam opinion is one issued in the name of the Court itself as opposed to one issued over the signature of an individual judge or justice.  It is also represents the unanimous decision of all the judges.

[2] A party seeking to challenge a lower court ruling is the “petitioner”, the party against whom the relief is sought is referred to as the “respondent”.

[3] Et Al.  An abbreviation of the Latin et alii, meaning “and others”.

[4] Returned.

[5] Rendering them as if never decided.


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