What You Need to Know About Today's Contraception, Privacy Opinions

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By Casey C. Sullivan, Esq. on May 16, 2016 11:45 AM

After a few slow weeks, the Supreme Court dropped five new opinions this morning. They're not just small-beans disputes either -- rather, they include two of the Court's most important cases of the term, both of which touch on important constitutional issues. Those are Zubik v. Burwell, a challenge to Obamacare's contraception mandate, and Spokeo v. Robins, a dispute over whether privacy violations are sufficient to confer standing.

Here's a quick and dirty review of those opinions, with more to come in the following days.

Zubik: Contraception Cases Sent Back to Lower Courts

Last November, the Supreme Court announced that it would hear a challenge to the Obamacare contraception opt-out procedures. Today, it announced that a decision might not be necessary -- should the parties be able to find some compromise.

Under the Affordable Care Act, employer-provided insurance plans must cover contraception. Religious employers who object can opt out, at which point the government takes over. But some employers argue that even the opt out process violates their religious freedom, triggering their involvement in a practice they object to.

Instead of deciding the matter, the Supreme Court has now sent it back to the Circuits to address the opt-out procedures constitutionality, while giving the parties "sufficient time to resolve any outstanding issues between them." After oral arguments, the Court had requested additionally briefing on whether an alternative system (one that did not require employers to submit an opt-out form) would be allowable. In an unsigned, per curiam opinion, the Court explained that:

Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand 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 petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'

In total, 13 cases were remanded to the appellate courts to see if a compromise position can be reached.

Spokeo: You Still Need a Concrete Injury in Privacy Violation Suits

The Supreme Court reversed the Ninth Circuit today, in the case of Spokeo v. Robins. Spokeo was one of the Supreme Court's most important privacy and standing cases in years, involving the "people search" website Spokeo and a disgruntled searched person, Thomas Robins, who sued after the website got his personal information wrong.

Spokeo's actions were illegal under the Fair Credit Reporting Act, Robins argued. But, Spokeo countered, even if that's the case, Robins had faced no injury as a result. He hadn't lost a job, been divorced, or spent money to correct the mistakes. Did he have the right to sue?

The Ninth Circuit said yes, but today the Supreme Court announced that the Ninth's analysis was off.

In an opinion authored by Justice Alito, the Court did not reject the idea that the Fair Credit Reporting Act could create statutory standing, but said that the Ninth Circuit's analysis was insufficient in two ways. First, the circuit court "elided" the concreteness requirement for standing. Second, still on the concreteness angle, the Ninth failed to address whether Spokeo's alleged procedural violations were enough to meet Article III standing requirements, as a statutory grant of a right to sue does not override the need for a concrete injury.

On remand, the Ninth Circuit could still find standing, should Robins be able to prove some concrete injury. But it's not likely, meaning that Robins' suit, and many Internet privacy suits like it, could effectively be shut out of federal court.

So, Zubik will be making the headlines today, but Spokeo could have a much longer-lasting impact.

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