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Supreme Court Responds Less Than a Week After Little Sisters of the Poor Hearing

Mark Fischer

John Burger - published on 03/29/16 - updated on 06/08/17

Unusual move seems to reflect justices' concern that nonprofits' health plans are being "hijacked" by government

In an unusual move, the U.S. Supreme Court has responded almost immediately after hearing oral arguments involving religious nonprofit organizations and the Obama administration’s requirement that most health insurance plans include contraception.

The high court on Tuesday afternoon asked lawyers on both sides to make new proposals on how contraception might be made available to female employees without involving the nonprofits themselves. There are seven cases that were consolidated into one, bearing the name Zubik v. Burwell. But perhaps the highest profile organization involved is the Little Sisters of the Poor, a 175-year-old religious order of women who serve the elderly poor. They have asked the Supreme Court for protection from the Health and Human Services mandate under the Affordable Care Act that would require the Little Sisters’ insurance plan to provide services that they consider immoral. The Obama administration has tried to work out a way by which the sisters — and other likeminded petitioners — can opt out, but the petitioners say the opt-out mechanism itself would be a trigger for the provision of contraceptive coverage, thus making the nonprofits morally complicit.

Lyle Denniston of Scotusblog said that in the high court’s two-page order, which the Justices apparently had been working on since last Wednesday’s hearing, lawyers were told to file one new brief on each side of the controversy, and then single replies, and to submit all filings by April 20:

From the specific wording of the new requirement, the Court appeared to have accepted — at least tentatively and maybe only as the basis for further exploration — the view of the nonprofit hospitals, schools and charities that any step they take would involve them in a violation of their religious objections to some or all contraceptive methods, but also to have accepted — again, perhaps only tentatively and for further analysis — the government’s view that it had to work through those institutions’ existing health plans in order to assure cost-free contraceptive coverage to their women workers and students of child-bearing age.

As did other news coverage of the March 23 oral arguments, Denniston noticed that a number of justices, including Chief Justice John Roberts, had seemed to accept the nonprofit institutions’ claim that the government would be “hijacking” those institutions’ own health plans for workers or students and that too would involve them in providing access to birth-control methods and devices to which they object.

The institutions’ lawyers argued that the government had a duty, under the federal Religious Freedom Restoration Act, to find ways to provide access to contraceptives entirely independently of those institutions and their existing health plans.  That was the argument that prompted a number of Justices to comment about the “hijacking” that might occur … The new order … seemed aimed at cutting the nonprofit institutions free from any notice requirement — to anyone.

“This is an excellent development,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty. “Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion. We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”

Also reacting to the news was Alliance Defending Freedom. “There is an easy solution,” a spokesman said. “The government can offer these services to women who want them without forcing Christian schools, nuns and priests to abandon their belief that life is sacred. We will confer with our clients to determine a response to the Supreme Court’s request.”

A final decision is expected from the court in June.

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