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Tie Score, with Little Sisters In the Lead, So Far

by Tony M.

The Supreme Court appears to have semi-resolved the issue of the Obama Administration beating up on the Little Sisters of the Poor (as discussed earlier), but they may have just created a temporary delay instead.

In a Per Curiam (unanimous) decision announced yesterday, they are vacating lower court decisions and remanding back to them for re-consideration. This is because of new facts developed since the lower courts decided. What new facts? The new facts are those that the Court itself elicited after oral arguments, when the Court asked the parties to submit new briefs on whether there might be a manner in which the government gets what it wants - contraceptive insurance coverage under the employer's insurer - while the religious organization gets what it wants - not to be morally complicit in providing contraceptives. According to the Supreme Court, the re-briefs conceded that it IS possible:

Following oral argument, the Court requested supple­mental briefing from the parties addressing “whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners.” Post, p. ___. Both petitioners and the Government now confirm that such an option is feasible. Petitioners have clarified that their religious exercise is not infringed where they “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception,” even if their employees receive cost-free contraceptive coverage from the same insurance company.

Although the Court claims that it is not deciding any of the issues before it in the case, and sending the issues back to the lower courts for them to re-consider,

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petition­ers’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.

it is important to realize that the Court is framing the case with a lot of new direction to the lower courts. The most important is how it framed the above quote, in saying that the parties "now confirm" that a mutually acceptable path is "feasible", it takes the wind out of the government's sails if it tries to pursue the matter in the Appeals courts. It would be seemingly irrational for a lower court, after the Supreme Court stated “both parties confirm that such an option is feasible,” to STILL decide that “the existing regulation is the least restrictive means of serving that interest”. I think that the Court is implying that much at least. Officially, the Court is saying “now that the parties both accept X in principle, you need to re-think your decisions in light of X”. But substantively, X actually consists in a less restrictive non-objectionable means of serving the government’s interest – at least in outline form.

I think this constitutes a qualified win for Little Sisters, Thomas Aquinas College, and the 35 others. Or, at least, a setback for the government's position.

The Court is declining to make the ultimate decision now, because ostensibly the government has admitted that a different regulation could solve the whole problem, so deciding now would be pre-mature. Presumably, the government is now supposed to re-draft a procedure along the outline of the instructions for the re-brief, and hopefully the Little Sisters and Thomas Aquinas College (and 35 others) will say "OK, works for us. If you had done that to begin with, we wouldn't have sued you." And if the government still goofs it up, they can object, again, and re-fight the issue in the courts. The Supreme Court is giving time for the new procedure to be written and have the remaining issues (if any) be developed all over again in the lower courts if necessary, before it will look at the issues in the light of the new procedure.

The Court's language in vacating and remanding was a little odd:

In light of the positions asserted by the parties in their supplemental briefs, the Court vacates the judgments below and remands to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D. C. Circuits.
The fact that the Court remanded ONLY the 4 cases that ruled for the government, and not the 8th Circuit case that ruled for the petitioners, suggests that the “vacates” is also aimed only at the 4 cases that decided for the government, because vacating the 8th Circuit case without remanding it alongside the others would be functionally insane.

If that is correct, then vacating specifically those 4 cases only, also implies that it is a qualified win for the religious organizations. In telling those 4 circuits to re-consider the issues taking into account the new information that the parties confirm that a NON-objectionable pathway is feasible, the court is saying their prior decisions do not hold. It is theoretically possible that those circuits could still rule for the government, but one presumes that the new rulings will be on a new procedure in which the government enables the religious organization to buy insurance and “need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception”. Once the government does that, the Little Sisters and TAC won’t have any moral objection, so hopefully the court cases become moot and there will be NO decisions for these circuits to bother with. Which (importantly) will leave only the 8th Circuit decision standing among the appellate decisions, which is good precedent.

It is only if the government's new procedure fails to comply with the Supreme Court's format and fails to provide that the religious organization "“need to do nothing more than contract for a plan that does not include coverage for some or all forms of contraception” should the matter come before the lower courts as a continued appeal by the appellants. But if the government fails to comply with the Supreme Court's directive, it better have a whopping good reason for such defiance, or the lower courts should strike down the government's attempt to circumvent its own admissions in re-brief. And so far in the case, the Supreme Court has indicated that it doesn't think the government has a leg to stand on for that. So, the problem isn't definitively solved just yet, but the Supreme Court has lit a pathway for solution if the Obama Administration will follow that.

Comments (2)

One small nit, "per curiam" is not really the same as "unanimous." It really means more along the lines of "we think this is pretty uncontroversial, but also not the sort of opinion that yields valuable precedent, so nobody is signing his name to it, but it's the order of the court." Every once in a blue moon you'll see a dissent from a per curiam opinion.

Thanks for the clarification. I just went with the dictionary definition. Which was, of course, un-nuanced. So it would be more like "by general consent", the sort of thing you would confirm by a voice vote and move along?

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