Photo courtesy of The Becket Fund

The U.S. Supreme Court took an unusual step yesterday when they asked lawyers on both sides of the birth control mandate case involving the Little Sisters to submit proposals for how to provide the disputed drugs without violating the consciences of the faithful.

According to Lyle Dennison, writing for SCOTUS Blog, the Court issued a two-page order yesterday afternoon which instructed each lawyer to file a new brief outlining how to resolve the issue by April 20.

Lawyers were instructed to provide “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,” the order stated.

“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 non-profit 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,” Dennison writes.

“But also to have accepted — again, perhaps only tentatively and for further analysis — the government’s view that it had to work through those non-profits’ existing health insurers to assure cost-free contraceptive coverage to their female employees of child-bearing age.”

Dennison sites one of the most significant developments during the March 23 hearings as being the number of Justices who seemed to side with the Little Sister’s claim that the government was “hijacking” the institution’s health plans for their employees which would then involve them in providing these services, even if just triggering the coverage by fulfilling the “accommodation” requirements established by the government.

Clearly the justices are trying to find a way to resolve the issue in a way that satisfies both sides of the argument.

“Basically the order requires the government to brainstorm ways to accommodate the Little Sisters,” said Teresa Collett, a professor at the University of St. Thomas School of Law to the National Catholic Register.

“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.”

For example, the Court's order proposed that religious non-profits could tell their health insurance provider that they do not wish to provide 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,” the Court suggested.

However, the insurance company, aware that the non-profit was not providing this coverage, would then notify the employees that the insurance company will provide the no-cost contraceptive coverage that the non-profit company is not providing.

Attorneys representing the Little Sisters and the other petitioners in the case are heralding the order as good news.

“This is an excellent development,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty who is defending the Little Sisters in the case. “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.”

Thus far, the Court has given no indication if another hearing will be held in the case.

This case could have far-reaching implications as it involves a variety of non-profits such as Priests for Life, several universities and the Archdiocese of Washington DC.

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