Both sides of the lawsuit concerning the U.S. government’s controversial birth control mandate moved one-step closer to conclusion this week as the government and representatives of the Little Sisters filed court-ordered proposals for alternatives to the way the program is currently being run.
The Catholic Herald is reporting on documents filed with the U.S. Supreme Court on April 12 in which attorneys representing the Little Sisters and several other petitioners said they would agree to any proposal as long as the alternative plan offering contraceptive health coverage is “truly independent” of the petitioners and their health insurance plans.
The case, referred to as Zubik v. Burwell, consolidates several suits involving the Little Sisters of the Poor, Priests for Life, the Pennsylvania dioceses of Pittsburgh and Erie, the Archdiocese of Washington, and other Catholic and faith-based entities. The groups are challenging the Affordable Care Act’s mandate that employers must provide insurance coverage for health care such as birth control pills, sterilizations and abortifacients, to which they object.
“We said yes to the court,” said Mark Rienzi, senior counsel with the Becket Fund for Religious Liberty about the group’s filing. “There certainly are ways that people can get contraceptive coverage without using the religious organization providing health plans to do it. The point of the case is not to say the government cannot get people to have contraceptives… The claim has always been ‘I just can’t be involved. You can do whatever you want, just leave me out of it’.”
He added. “Our argument is if the government is willing to do something separate, that would be fine with us.”
The government, on the other hand, is described as having “hemmed” and “hawed” in its response, spending several pages detailing certain things it would like the Court to do if it lost the case.
According to Stanford law professor Michael W. McConnell, the government was put in a bind by the unusual request by the Court to come up with an alternative.
“If it answered ‘yes,’ it would effectively be admitting to a RFRA [Religious Freedom Restoration Act] violation. But if the government said ‘no,’ it would be appearing unwilling to work with the Court on a solution that will satisfy both sides,” McConnell said.
Judging by the writing on the wall, he suspects that the Supreme Court may not have been very impressed with the government’s argument.
“Something must be going on behind the maroon curtains. A 4-4 split would be a victory for the government in almost all the cases,” he opines. “Why explore alternatives unless there are doubts among the pro-government ranks on the Court? And why worry about alternatives unless the Justices are unpersuaded by the government’s argument that the mandate imposed no substantial burden on religious exercise to begin with? (That was the basis on which the government won most of the cases in the courts of appeals.)”
Meanwhile, the sisters remain hopeful about the eventual outcome of the case.
““We have always believed a solution is possible,” said Sister Loraine Marie Maguire, Mother Provincial for the Little Sisters of the Poor, “and are hopeful the government will let us serve.”
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