High court wants help with Little Sisters case

In a highly unorthodox move, the U.S. Supreme Court on Tuesday asked for additional briefing in the Little Sisters of the Poor case, officially known as Zubik v. Burwell. The order indicates the court might be deadlocked over the nonprofits’ challenge to the contraceptive and abortifacient mandate and seeking a way to avoid a 4-4 tie that leaves the constitutional question unresolved. The Supreme Court is in the rare position of deciding cases with eight justices after the death of Justice Antonin Scalia in February.

The order asks the lawyers on both sides of the case to submit briefs detailing alternative ways employees at objecting religious nonprofits could obtain contraceptives and abortifacients without involving the nonprofit. The Little Sisters’ attorneys greeted the order with a wary hopefulness.

“These are good questions they’re asking,” said the Becket Fund for Religious Liberty’s Mark Rienzi, lead attorney for the Little Sisters of the Poor. “They’re saying to the government, ‘You really have no other way?’”

The court order is significant in that its assumption is that the government might find less burdensome alternatives to the current “accommodation” for nonprofits. Under the current regulation, nonprofits must sign a form providing their insurance information to authorize the provision of the objectionable drugs to employees.

The court, in its order, suggested examples of alternatives, like the nonprofit telling the insurer directly not to include contraceptives in its plan, then allowing the company to arrange coverage separately. That might be concerning for nonprofits because the court still seems focused on involving their health insurers to deliver the objectionable drugs to their employees.

Rienzi said the nonprofits have “work to do” in coming up with alternatives for the brief, but he was less concerned with the tenor of the order. He said the big insurance companies can figure out alternatives without involving nonprofits.

“Of course there’s other ways for the big insurance companies to get people contraceptives,” he said. “It’s never been the claim that the group now owns Blue Cross.”

Last Wednesday, the court heard arguments in the Little Sisters case, consolidated with six others brought by religious nonprofits. After hearing arguments, typically the justices take an informal vote on the case at their weekly conference, then they begin trading drafts of opinions. So although the public usually doesn’t see a Supreme Court opinion until months after arguments in a case, the justices typically know each others’ votes much earlier.

If the justices saw the vote was tied at their last conference on Friday, they may have sought a new way forward with the case. The first round of briefs on this matter is due April 12, with reply briefs due April 20.

Chief Justice John Roberts; Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito all seemed likely on the side of the religious nonprofits. Justices Stephen Breyer and Elena Kagan left their positions vague in the arguments, and Rienzi thought even Justice Sonia Sotomayor had meaningful qualms with the government position at one point.

“It could be any or all of them in play,” he said. “But the point is the court is having the discussion and that’s helpful to our side. They get the fact that the old system violates [the nuns] religion.”

But as with any discussion of forthcoming Supreme Court decisions, Rienzi acknowledged the justices can be difficult to predict: “Who knows?”