Supreme Court surprise move in Little Sisters case

Justices want more information.

Coming less than one week after hearing the Little Sisters of the Poor case the U.S. Supreme Court took the unusual step

of asking for additional information, telling both sides to discuss alternative ways to avoid forcing religious women to provide services against their faith.
“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, lead attorney for the Becket Fund for Religious Liberty. “We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”

As one journalist who has covered this story since the government issued the HHS mandate in January 2012, and the lawsuits against it that started coming within days or weeks, this threw me (and surprised a lot of court watchers and litigants involved in these cases). Because we’ve had over four years of dozens upon dozens of lawsuits in different courts at different levels making the case and elaborating the details abundantly clearly, that there are alternatives already in place and working to carry out the government birth control delivery scheme (such as government run programs themselves) while exempting major corporations and essentially one-third of Americans from this mandate already (info central has it all here).

But okay, this is good news, reflecting that justices aren’t buying the government’s claim that it already made an “accommodation” for the Little Sisters by having them sign a paper saying they object, but then explicitly granting a third party to provide the drugs and services to which they object in the first place.

Justices deliberating over this case must have finally seen through that smoke screen, because this request for new alternatives suggests a rejection of what the government claimed was an alternative, a false accommodation that wasn’t.

It’s a positive development, claims NRO.

Specifically, the Court wants to know if there are alternative means of providing contraceptives to employees without requiring the Little Sisters to participate in the process:

(snip from the court order):

“For example, the parties should consider a situation in which petitioners would contract to provide health insurance for their employees, and in the course of obtaining such insurance, inform their insurance company that they do not want their health plan to include contraceptive coverage of the type to which they object on religious grounds. 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. At the same time, petitioners’ insurance company—aware that petitioners are not providing certain contraceptive coverage on religious grounds—would separately notify petitioners’ employees that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan.” (emphasis added)

Before this order came out Tuesday, the court was already pretty much split 4-4 over the religious liberty test involved in the HHS mandate, and especially how it upheld (or didn’t) the Religious Freedom Restoration Act. Justice Scalia’s untimely death impacts this decision most notably. But Justice Breyer struck some in the courtroom as unconvinced by the government’s arguments last week. If just one justice joins the four expected to uphold religious freedom rights violated by the HHS mandate, it could finally end this unbelievable saga of government infringement on one of the most basic, fundamental and cherished freedoms we have.