In another development involving the government's troubled implementation of the ACA's contraceptives mandate, the Supreme Court has vacated the rulings of several circuit courts of appeals involving a challenge by nonprofit entities to a government accommodation under the mandate (Zubik v. Burwell, 136 S.Ct. 1557 (2016); see Practice Notes, Contraceptives Coverage Under the ACA and Preventive Health Services Under the ACA, Other Than Contraceptives, and Standard Clause, Notice of Availability of Separate Payments for Contraceptive Services). On remand, the parties will attempt to reach a new accommodation.

As background, the government provided an accommodation for nonprofit entities that have an objection to providing contraceptives under the ACA. The accommodation generally requires nonprofit entities to submit a form to their insurer or the government (and naming the applicable insurer), and stating the entity's objection to providing contraceptives coverage.

In March 2016, the Supreme Court issued an order requesting additional briefing to address whether and how contraceptive coverage could be obtained through plan insurers in a way that did not require an employer's involvement (other than the employer's initial decision to offer health insurance without contraceptive coverage).

In response to this request, according to the Court, both parties indicated that such an arrangement was possible. The nonprofit entities would accept an arrangement requiring them only to contract for a plan that does not include coverage for some or all contraceptive methods (even if their employees receive cost-free contraceptive coverage from the same insurer). The government, meanwhile, took the position, as to employers with insured plan coverage, that the accommodation could be modified consistent with the Supreme Court's March 2016 order while still making contraceptives coverage "seamlessly" available.

Citing "substantial clarification and refinement" in the parties' positions, the Supreme Court vacated the judgments of the circuit courts of appeals and remanded to those courts for further proceedings. According to the Court, the parties should be allowed sufficient time to arrive at a new accommodation that balances the parties' respective interests.

The Court expressed no view on the merits of the case, including whether:

It's back to the drawing board for the government and the nonprofit entities in this litigation. The Supreme Court's opinion instructs the courts of appeals to allow "sufficient time" for the parties to find an accommodation that is acceptable to all involved, but the exact timetable remains unclear. It would seem likely that the government's current accommodation guidance will ultimately need to be updated, assuming the parties can reach a compromise on remand to the courts of appeals.