Justices Prod HHS, Little Sisters to End Impasse

Court Wants Administration to Find Solution for Plaintiffs

WASHINGTON — Days after eight justices heard oral arguments for a legal challenge to the Health and Human Services’ contraceptive mandate filed by the Little Sisters of the Poor and six other religious nonprofits, the Supreme Court asked both sides to provide fresh solutions to resolve the impasse.

“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 Mark Rienzi, the Little Sisters’ lawyer from the Becket Fund for Religious Liberty, in a statement following the court’s March 29 order.

The Little Sisters’ lawyers have argued that the government “accommodation,” which required paperwork that confirmed their objection to the mandate, actually “authorized” the provision of services.

But the administration has insisted that the workaround balanced the plaintiffs’ concerns with the state’s interest in providing “seamless” access to contraception.

In their order, the justices directed the government to propose a resolution that addressed the plaintiffs’ objections, but also provided their employees with easy access to free contraception.

The goal was a new pathway “that does not require any involvement” from the plaintiffs, except for their initial role in establishing a health plan. The order sketched out a process for reaching a solution and directed both sides to submit their proposals, followed by reply briefs, with an April 20 deadline.

“We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals,” said Rienzi.

The court’s order marked an unexpected twist in Zubik v. Burwell, a consolidation of seven cases filed by religious nonprofits, including the Little Sisters, the Archdiocese of Washington, the Diocese of Pittsburgh, The Catholic University of America and Priests for Life. They contend that the accommodation violates the 1993 Religious Freedom Restoration Act.

The court’s order, which included a proposed scenario to meet the goals of both sides, surprised legal experts.

Teresa Collett, a professor at the University of St. Thomas School of Law, told the Register that the court’s two-page order was “unusual.”

“Basically, the order requires the government to brainstorm ways to accommodate the Little Sisters,” said Collett.

“Other lawyers have characterized this as 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 a more comprehensive analysis on SCOTUSblog.

But court watchers also speculated that the justices were deadlocked and wanted to find a way out.


Deadlocked Court

“The reality of an ideologically divided, evenly split, one-man-down Supreme Court became apparent Tuesday: The justices deadlocked on a major organized-labor case and tried to avoid a second stalemate by floating their own policy compromise on the Affordable Care Act’s contraception mandate,” reported a March 29 story in The Washington Post.

“The actions underscored how the death of Justice Antonin Scalia has upended business as usual at the Supreme Court. They also provided a preview of the kind of tentative decisions that may be all the eight-member court can muster as it faces a docket filled with election-year controversies.” 

The March 23 oral arguments highlighted the deep divisions that separate the liberal and conservative wings of the court.

While several justices appeared to support the government’s case, others prodded Donald Verrilli Jr., the U.S. solicitor general, to justify the administration’s refusal to provide an accommodation that addressed the Little Sisters’ objections and met the high legal standard set by the Religious Freedom Restoration Act.

The plaintiffs’ lawyers argued that the state health exchanges, or other government-run health programs, could offer a plan that provided free contraception without “hijacking” the religious order’s health plan.

But Verrilli insisted that the “whole point of the mandate’s preventive coverage was to have it be part of regular health care, not something separate.”

Chief Justice John Roberts challenged that argument.

“In other words,” Roberts said, “the petitioner has used the phrase ‘hijacking,’ and it seems to me that that’s an accurate description of what the government wants to do.

“They want to use the mechanism that the Little Sisters and the other petitioners have set up to provide services because they want the coverage to be seamless.”

Verrilli countered that Congress had determined the need for this mandate.  Any change in the delivery system would “result in significantly less use of medically necessary services.”

Justice Anthony Kennedy picked up Roberts’ point: “That’s why it is necessary to hijack the plans.”


New Approaches Requested

When the court issued its March 29 order, legal experts concluded that the Little Sisters’ argument had gained traction with a number of the justices.

“The new order thus seemed aimed at cutting the nonprofit institutions free from any notice requirement — to anyone,” said Lyle Denniston in a March 29 post on SCOTUSblog.

“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 nonprofits to set up something new, so that access would not be forthcoming through the institutions’ existing health plan.”

Denniston 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 justices’ own proposed solution in their March 29 order was based on the premise that the plaintiffs would contract with an insurance provider for a health plan that did not include contraceptive coverage. 

“Petitioners would have no legal obligation to provide such contraceptive coverage, would not pay for such coverage and would not be required to submit any separate notice to their insurer, to the federal government or to their employees,” read the order.

“At the same time, petitioners’ insurance companies — aware that petitioners are not providing certain contraceptive coverage on religious grounds — would separately notify petitioners’ employees that the insurance companies will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plans.”

The government and the plaintiffs were encouraged to offer other mechanisms that address the Little Sisters’ objections, while providing access to the mandated services.

The question now is whether the government will be willing to develop a plan that secures a resolution to Zubik v. Burwell and to the many other legal challenges to the mandate filed by religious nonprofits, including the Eternal Word Television Network (EWTN). The Register is a service of EWTN. 

If a solution cannot be found, the court is expected to move ahead with the case and issue an opinion by the end of June.