By sending the contraceptive mandate case back to the lower courts without a clear path forward, the U.S. Supreme Court could end up revisiting the issue in the next administration, observers say.

The Supreme Court's decision Monday not to decide in the highly anticipated case between the government and several religious nonprofit organizations objecting to the health care law's accommodation to the contraceptive mandate signals a possible 4-4 split among the eight-member panel of justices, sources said.

The high court vacated the judgments and remanded the case, Zubik v. Burwell, consisting of seven consolidated cases, to the Third, Fifth, Tenth, and D. C. Circuits.

In a separate order issued Monday, the Supreme Court vacated judgments of another six contraceptive mandate cases and remanded them to the Fifth, Seventh, and Eighth circuit courts.

All of the appellate courts upheld the government's rule that requires religious nonprofits to notify their insurers, third-party administrators or the government of their objections to providing contraceptive coverage, with the insurers or TPAs providing it, the 8th U.S. Circuit Court was the only one to issue a preliminary injunction against the accommodation.

“It's questionable to me on how that's going to resolve the issue seeing as how (the lower courts) were not able to agree in the first place,” said Amy Gordon, Chicago-based co-chair of law firm McDermott Will & Emery L.L.P.'s health and welfare benefits affinity group.

The Supreme Court's decision “really smacks of a compromise,” said Aaron Goldstein, Seattle-based partner with law firm Dorsey & Whitney L.L.P.

The high court did not decide on the merits of the case, including “whether petitioners' religious exercise has been substantially burdened, whether the government has a compelling interest or whether the current regulations are the least restrictive means of serving that interest,” according to its unanimous opinion.

Instead, in light of the “substantial clarification” of the positions of the religious nonprofits and the government after supplemental briefs were filed in April, the Supreme Court wrote 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 petitioners' health plans 'receive full and equal health coverage, including contraceptive coverage.'”

“We anticipate that the Courts of Appeals will allow the parties sufficient time to resolve any outstanding issues between them,” said the high court.

The Supreme Court has made similar decisions in the past, noting three cases in its opinion.

It isn't clear how a compromise will be forged since the appellate courts “have no mechanism for them to all work together,” said Timothy Jost, health reform law expert and emeritus professor at the Washington and Lee University School of Law.

“I think the Supreme Court is hoping there will be a consensus, but I'm not sure whether that's really going to happen or not,” he said. “I think it's more likely than not” that the case will land back in the Supreme Court, he said, “but probably with a Supreme Court that has nine members.”

“Whether the lower courts are able to come up with an accommodation that makes everybody happy and whether there are different accommodations that then eventually make their way back up to the Supreme Court — hopefully by the time there's a ninth justice — really remains to be seen,” said Tami Simon, Washington-based global practice leader of the Knowledge Resource Center of Xerox HR Services.