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The Little Sisters of the Poor vs Obama's Enormous Central Govt Edicts

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Something strange is afoot at the U.S. Supreme Court. The justices

issued a highly unusual order Tuesday for the parties in Zubik v.

Burwell, one of this term’s most-watched cases.

Here’s the abridged version of the dispute: The Affordable Care Act’s

regulations require virtually all employers to provide health

insurance to their employees. They also require health-insurance

companies to include contraceptive coverage for women in their

plans at no additional cost. Religious nonprofits that object to

contraception may file a one-page form with the federal government,

at which point the insurance company will directly provide the

coverage to their employees without further involvement from the


That accommodation is where the controversy begins. A group of

religious nonprofits, ranging from private Christian universities to

the Little Sisters of the Poor, argued that filing the form still requires

them to facilitate something their religious beliefs abhor. The

government counters that the accommodation simply allows the

nonprofits to opt out of the requirement, which doesn’t qualify as a

“substantial burden” under the Religious Freedom Restoration Act.

After the death of Justice Antonin Scalia in February, the case

seemed destined for a 4-4 ruling that would leave all lower-court

rulings on the issue intact. In practical terms, the contraceptive-

coverage mandate would survive everywhere except the Eighth

Circuit, which includes Arkansas, Iowa, Minnesota, Missouri,

Nebraska, and the Dakotas.

But Tuesday’s order muddles those predictions. It requires all

parties in the case to file supplemental briefs “that address whether

and how contraceptive coverage may be obtained by petitioners’

employees through petitioners’ insurance companies, but in a way

that does not require any involvement of petitioners beyond their

own decision to provide health insurance without contraceptive

coverage to their employees.” (“Petitioners” refers to the


The Court then offers a bit of explanation and more direction.

Petitioners with insured plans are currently required to

submit a form either to their insurer or to the Federal

Government (naming petitioners’ insurance company),

stating that petitioners object on religious grounds to

providing contraceptive coverage. The parties are

directed to address whether contraceptive coverage could

be provided to petitioners’ employees, through

petitioners’ insurance companies, without any such

notice from petitioners.

Then, in the closing paragraph, the Court outlines its own

hypothetical solution.

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.

Finally, and perhaps most interestingly, the Court invites the

parties to “address other proposals along similar lines, avoiding

repetition of discussion in prior briefings.” The Court appears to be

inviting both sides to a brainstorming session of sorts.

So, what does all this mean?

For starters, the order only makes sense if there aren’t currently

five votes for the legal status quo. Justices Ginsburg, Breyer,

Sotomayor, and Kagan seemed ready to uphold the

accommodation after oral arguments. If Justice Kennedy had

provided a fifth vote to them, an order pondering alternative means

to provide contraceptive coverage would be pointless.

That would be quite a reversal for Kennedy, who unambiguously

wrote in favor the accommodation only two years ago in his Burwell

v. Hobby Lobby concurrence. “The accommodation works by

requiring insurance companies to cover, without cost sharing,

contraception coverage for female employees who wish it,” he

wrote then. “That accommodation equally furthers the

Government’s interest but does not impinge on the plaintiffs’

religious beliefs.”

A strong possibility, articulated well here by Greg Lipper, the

senior litigation counsel at Americans United for Separation of

Church and State, is that Kennedy isn’t satisfied with the

nonprofits’ proposed solutions if the accommodation is struck

down, and is hunting for less disruptive alternatives. That could be

bad news for the nonprofits if his hunt comes up empty, Lipper


“Under the Court’s proposal, objectors wouldn’t have to do

anything other than tell their insurance companies what coverage

they want and what coverage they don’t want,” he notes. “If they

respond that even the Court’s proposal substantially burdens their

religious exercise, then it becomes even clearer that they object to

the independent conduct of third parties.”

Whatever the precise motivations, the order’s detail and emphasis

feel like a last-ditch attempt to avoid a deadlocked ruling. One can’t

blame the justices for trying. Without their intervention, a major

federal law will mean two different things in two different parts of

the country. Resolving these differences is the Supreme Court’s

most basic function—one it could fail to perform in this case and

others until its vacant ninth seat is filled.

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