The Supreme Court’s non-decision decision in Zubik v. Burwell

The Supreme Court’s announcement that it will not rule on Zubik v. Burwell, the challenge to women’s access to birth control under the Affordable Care Act, is meant to avoid a 4-to-4 deadlock by sending the issue back to lower courts. It would have been far better if the Court had simply recognized fundamental constitutional principles and human rights.

Zubik is the latest attempt by radical religious conservatives to deny women their fundamental right to reproductive health care. The court had an opportunity to reject the plaintiffs’ extremist interpretation of their religious entitlements as unjustifiably trampling the rights and needs of women. It could have ruled that because contraception is essential health care–utilized at some point by roughly 99 percent of U.S. women)–blocking access to it is a dangerous form of sex discrimination. The court could have acknowledged and condemned our nation’s painful history of using religion to justify such oppressions as slavery, segregation, and LGBTQ discrimination, issuing a principled, upright rejection of the plaintiffs’ attempt to use religion to justify bigotry against women.

There is nothing “pro-life” about restricting birth control. Contraception is life saving, life-affirming health care. Unintended pregnancy is closely correlated with infant and maternal mortality and is a significant risk factor for domestic violence homicide. The fact that half of pregnancies in the U.S. each year are unintended, and that our country has the highest rates of infant and maternal mortality among developed countries, higher than in some developing countries, should tell us that the Zubik plaintiffs’ arguments are not only constitutionally untenable but downright vicious in their disregard for women’s health and lives.

The good news about the court’s non-decision decision is that, at least, the path is now cleared for the plaintiffs’ current employees to have their contraception covered like any other health care, as required under the Affordable Care Act.

The shorthanded Supreme Court is hoping that lower courts can act more decisively than it can. But rather than find a workaround to impending deadlocks, it would be better for everyone if the U.S. Senate would do its job and let the Supreme Court return to full strength so it could do the same.

Contact: Tamara Stein,, 951-547-1241