“Hobby Lobby was hugely significant as a matter of legal doctrine, as it effectively eradicated the old rule that religious objectors many not undercut the rights of third parties. But the Court’s opinion in that case appeared to be fairly limited in scope. Justice Samuel Alito’s opinion for the Court leaned hard into the fact that, rather than requiring all employers to provide birth control coverage directly to employees, the Obama administration could have achieved the same goal more indirectly.
Under this indirect approach, an employer could “self-certify that it opposes providing coverage for particular contraceptive services.” Once that happened, the government could make a separate arrangement with the insurer that runs the employer’s health plan, which would ensure that the employer’s workers receive coverage for birth control.
After the Obama administration took up the Supreme Court on its suggestion that it use this more indirect method of providing contraceptive care, some religious employers objected to the process the Supreme Court appeared to endorse in Hobby Lobby. The result was a second round of litigation, which culminated in the Zubik decision.
Yet with the Court apparently split 4-4 on the proper outcome in Zubik, that decision did little more than punt the case back to the lower courts. The broader question of whether employers can wield their religious objections to deny birth control coverage to their employees remains unresolved.”