Today the Supreme Court issued an unusual order asking for additional briefing in the Little Sisters of the Poor case. Specifically, the Court wants to know if there are alternative means of providing contraceptives to employees without requiring the Little Sisters to participate in the process:
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.
The Sisters’ counsel, the Becket Fund for Religious Liberty, described the order as an “excellent development.” The Court’s order acknowledges that the current Obama administration regulation requires the Sisters’ “involvement” in providing contraceptive coverage and seems to be asking for alternatives that would accomplish the government’s goals without infringing on the Sisters’ religious liberty.
It’s unwise to read too much into orders like this, but I agree with Becket – it’s a far better development for the Sisters than for the government. Stay tuned.