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May 17, 2016

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

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.

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