A hopeful sign? New development in the Little Sisters' court case

Outside 13 of the Supreme Court in Washington DC during the courts ruling in favor of legalizing gay marriage on June 26 2015 Credit Addie Mena CNA 6 26 15 The Supreme Court. | Addie Mena/CNA.

The Supreme Court on Tuesday asked for parties in the Little Sisters' case to submit alternative means, if possible, of ensuring contraceptive coverage while maintaining religious freedom.

"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," Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty, which represents the Little Sisters, stated on Tuesday.

The Court instructed both the plaintiffs in the case – the Little Sisters of the Poor, the Archdiocese of Washington, the group Priests for Life, and several Christian colleges – and the administration to submit supplemental briefs answering whether employees can receive contraceptive coverage while maintaining the religious freedom of the employers who object to providing such coverage. If a way exists, the brief should explain how it works.

At the heart of the case Zubik v. Burwell is the administration's mandate that employers provide cost-free coverage for contraceptives, sterilizations, and drugs that can cause abortions, and the so-called "accommodation" offered to objecting non-profit employers.

This accommodation involves the employer sending the government a form stating its objection to providing the coverage. The government notifies their insurer (or third-party administrator for self-insured parties) of their objection and the insurer provides the coverage separately.

The plaintiffs like the Little Sisters – as well as many other non-profits – argue that this still forces them, under threat of heavy fines, to cooperate with practices they believe are immoral.

They say they are still facilitating access to these drugs in their health plans by sending the form to the federal government because they know the coverage will ultimately be provided. Furthermore, they argue the government is unlawfully "hijacking" their health plan which is between them and their insurer.

Meanwhile, the administration argues that contraception coverage in employer health plans is in the common interest and that any other method of the government separately providing this coverage on the public exchanges or through Medicaid or Medicare would be insufficient to achieve the universal coverage that Congress envisioned in its health care law.

An alternative method – if it exists – of ensuring the contraceptive coverage while not implicating objecting parties in facilitating access to this coverage should be found, the Court stated Tuesday.

"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," the order stated.

"For example," it added, "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."

The insurer, aware that the employer has a religious objection to the coverage, would then take care of setting up "cost-free contraceptive coverage" for the employee independent of cost to the employer and independent of the employer's health plan.

The order comes after oral arguments in the case took place at the Supreme Court on March 23. The question of an alternative method being possible was raised during the arguments by Justice Elena Kagan, who asked if any "acceptable" method of "notification" existed for objecting employers while ensuring that women still receive "contraceptive coverage."

"I'm asking whether there's any accommodation that would result in the women employees getting contraceptive coverage seamlessly through an employer-¬based plan that you would find acceptable," Justice Kagan asked Noel Francisco, who was arguing for the petitioners.

"Your Honor, possibly so, possibly not," he replied, adding that "we've not been offered that kind of alternative to consider." The "more distance" there is between the objecting employer and the contraceptive coverage, he added, the "less problematic" it would probably be for the plaintiffs.

Justice Kagan followed up, asking what scenarios might exist with an "acceptable" distance.

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"Enough distance is we file the notice of objection, and the government furthers its interest in the same way it furthers its interest with respect to all of the other employees who don't get coverage from an employer-¬based plan," Francisco replied, referring to the large corporations like Visa and PepsiCo that are exempt from the contraceptive mandate because their pre-existing health plans have been "grandfathered" in to the law's regulations.

Another scenario Francisco floated would be if the government paid for an "uber-insurance policy" where one carrier provided all the mandated contraceptive coverage and the plaintiffs used that carrier without having to notify them of their objection. The coverage would be provided separately.

He concluded that "it's quite clear that the government has alternatives because it's the same alternatives that it uses for everybody else. And if all of those alternatives are fine with them, they at least need evidence explaining why they're not fine for us as well."

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