Just days after eight justices heard oral arguments for the legal challenge to the Health and Human Services contraceptive mandate filed by the Little Sisters of the Poor, and six other cases, the Court asked both the Obama administration and the plaintiffs to provide fresh solutions that addressed their moral objections, while serving the needs of their employees.
“This is an excellent development. Clearly the Supreme Court understood the Sisters' concern that the government's current scheme forces them to violate their religion,” said the Becket Fund for Religious Liberty's Mark Rienzi, in a press release.
“We look forward to offering alternatives that protect the Little Sisters' religious liberty while allowing the government to meet its stated goals.”
I asked Teresa Collett, a professor at the University of St. Thomas School of Law, for her opinion of the Court's order.
“In an unusual two-page order today, the Court ordered the parties to brief the question of 'whether and how' contraceptive coverage could be provided through the Sisters' insurance without any action on the part of the Sisters,” Collett explained in an email message.
“Basically the order requires the government to brainstorm ways to accommodate the Little Sisters. Other lawyers have characterize this is an implicit order to settle the case. That seems to be a fair characterization given that the court outlines various possibilities of keeping the Sisters out of it while getting contraception to the employees that want it.”
Collett's assessment echoed SCOTUSblog's more comprehensive analysis here. The Court's order is here. But a story in the Washington Post speculated that the justices were deadlocked, and were looking to find a way out.
During the March 23 oral arguments, several justices prodded Donald Verrilli Jr., the U.S. Solicitor General, to explain why the government couldn't provide a full exemption for the Little Sisters, when an estimated 25% of employees are in plans that aren't required to provide contraceptive services free of charge.
Becket Fund lawyers had suggested that the state health exchanges, or other government-run health programs, could offer a plan that provided free contraceptives for employees of the Little Sisters without “hijacking” the religious order's health plan. The Eternal Word Television Network (EWTN) has also filed suit against the mandate and is represented by the Becket Fund. The Register is a service of EWTN.
But General Verrilli defended the government's “accommodation” to the Little Sisters that asked them to sign a form or write a letter stating their objection to the mandate. While the plaintiffs' lawyers argued that the required paperwork would actually “trigger” the coverage, and thus make the employers complicit in the provision of abortion-inducing drugs, Verrilli said the accommodation addressed their concerns while providing “seamless” access to the mandated services. See my story on the oral argument here.
Today's posting on SCOTUSblog suggested that the Little Sisters' argument had gained traction:
The new order thus seemed aimed at cutting the non-profit institutions free from any notice requirement — to anyone. But it also seemed to be based on the premise that a way might be worked out for the providers of existing health coverage for the non-profits to set up something new, so that access would not be forthcoming through the institutions’ existing health plan.
The SCOTUSblog post acknowledged that the justices' order marked “a significant break from the Court’s customary approach of taking a controversy as it finds it, and deciding its legality based only on those terms.”
The Court's order sketched out several solutions and directed both sides to submit their proosals, followed by reply briefs due April 20.
The question now is whether the government will outline a plan that will be acceptable to the Little Sisters and the other plaintiffs. They have come a long way since filing their first legal challenge to the mandate --in some cases back in 2012. At the time, there was a good deal of skepticism and even hostility from Catholics who shrugged off their concerns about the mandate.
Let's pray that we get more good news by the close of the court's term in June.