U.S. top court seeks more information in contraception insurance case


The U.S. Supreme Court on Tuesday asked for new a legal briefing in a challenge by Christian nonprofit employers to a requirement under President Barack Obama’s healthcare law to provide health insurance to female workers covering birth control, indicating the justices are struggling to decide the case.

The order issued by the court asks for more information on how contraceptive coverage can be obtained “in a way that does not require any involvement” of religious employers. In the oral argument in the case last week, the shorthanded eight-justice court appeared closely divided, raising the possibility of a 4-4 split that would leave in place lower court rulings that backed the Obama administration.



“The Court” is probably Justice Kennedy. He gave both sides a hard time and appeared to be somewhat on the fence.


If it’s 4-4, I hope this case can be brought before the court again when there is a new justice, which can happen in 4-4 cases.


I hope someone else is on the fence else the best we can hope for is a 4-4 decision.


We have no idea what the current vote would be, even guessing from oral arguments. The Court seems to accept the argument that the current process might be infringing on beliefs, but also acknowledges that contraception is a vital service that needs to be provided under employees’ regular insurance. This order is giving both sides to propose new arrangements that could be acceptable to both ends. If they can’t find an agreement the Court will probably vote on the case as presented.


Here is what Amy L Howe, the editor of Scotusblog, has said about the arguments last week:

If the oral argument is representative of the Justices’ votes, the Court will divide four to four, and the Justices will have to figure out what to do next. One option would be to issue a simple one-sentence order (as it did in another case on Tuesday) affirming the lower court’s decision. But as my colleague Lyle Denniston has explained, that presents a bit of a conundrum: although all of the lower courts whose decisions were under review today had upheld the mandate against the challengers’ attacks, another federal court of appeals has struck it down – creating the possibility that the mandate would be in effect in most, but not all, of the country.

Another option would be to wait for a ninth Justice to be confirmed to the Court, to break the tie. But no one knows when that will be. And if there is no replacement for Justice Scalia before the presidential election, and a Republican is elected to the White House, the dispute could disappear altogether, given the Republicans’ vows to repeal the ACA – or at least regulations like these implementing the law.
We could know more in the next few weeks, or we may have to wait until the hot and humid weeks of late June for an answer from the Court. Stay tuned.



I think a 4-4 split is the best we can possibly hope for. I just don’t see Breyer, Sotomayor, Kagan, or Ginsberg siding with the conservatives in this case. And, with Kennedy on the fence, it could even be a ruling against the sisters.


A 4-4 split would be a non-precedent setting ruling against the Sisters and most of the plaintiffs.


Agreed. Clearly the Court is trying to find a way to make sure these women have access to contraception, but in such a way as to not offend the employer’s sensibilities. That would, of course, be a best case scenario for all involved.


Some analysis:


The fact that the Court is seeking a solution that would ensure that the employees get contraception coverage seems to be a signal that a majority of the Court believes that has to be part of the result (to me, at least). One of the plaintiffs’ lawyers was asked at oral argument if there was an accommodation that would accomplish that, and he seemed to suggest there is not. I think they are being told to come up with one.


When did contraception become a vital interest of the Supreme Court? The history of our republic evinces no such overriding interest in contraception. I realize that for the Obama administration, contraception is the most important thing in the world.


But costly for the nuns who must pay the legal fees.

Its why Scalia’s seat must be filled instead of waiting for a year or more from now.



When did contraception become part of health care!? Fertility is not a disease! :whacky:



It could be even worse for the Little Sisters of the Poor if it was 5-4 against them and the other plaintiffs, if Garland was on the court, and given what he has reported to have said about the author of Roe v Wade’s papers, I suspect he would vote against them. At least with a 4-4 there is a chance the case could be heard again when there is a new Justice who would hopefully be somebody who was nominated and then appointed who would likely be a 5-4 in favour of Little Sisters of the Poor and other plantiffs.


Honestly, that’s my question as well. The wording of the mandate specifies that contraceptive drugs and sterilization surgeries are only covered for the purpose of contraception. PCOS? You have a copay. Medically necessary hysterectomy? Cough up some cash. Want to make sure you can indulge in sex with whomever you want, without worrying about if they’d be a good father? Have at it!

If carcinogenic drugs used purely for recreational purposes are mandated to be covered, I see no reason that the government shouldn’t mandate free cigarettes for me.


I believe Garland was a good choice and if not confirmed, we could end up with a nominee whom, Hillary appoints who’ll be far to the left of Garland,

I believe Garland will follow the Constitution, I fear a Hillary appointment very much.



“This is an excellent development,” said Mark Rienzi, lead attorney for the Becket Fund for Religious Liberty. “Clearly the Supreme Court understood the Sisters’ concern that the government’s current scheme forces them to violate their religion. We look forward to offering alternatives that protect the Little Sisters’ religious liberty while allowing the government to meet its stated goals.”


I was just coming here to post a similar story from the NY Times. Again it seems like they missed the mark - is my understanding correct that the Little Sisters aren’t objecting to paying to contraception, but that employment in the organization is the means by which women can gain access to contraception? The difference being that the organization doesn’t need to pay for contraception in order for it to be entangled in a way that violates the Little Sisters’ religious expression.

Here’s the link I came across (if you need a very similarly-written story on the same):


A related question - the Little Sisters are under threat of stiff fines for failing to comply with the mandate to offer contraception. Does their insurance company carry any risk as well? Is it possible that their insurer said “Yes, we’ll offer you this plan, but it doesn’t mean the minimum coverage guidelines set forth by the ACA.”


Thanks for the link. The Court does seem to be challenging the parties to find a solution that works for all. Reasonable grown-ups should be able to do just that. Fingers crossed.


Of course it’s not! But women being able to control/manage their fertility and to plan their families has repeatedly been shown to be good for society. That’s why access to safe, effective contraception is key to women’s (and society’s) overall health.

Additionally, birth control is an excellent treatment for many women’s health issues that have nothing to do with avoiding pregnancy per se.

I understand that Catholic Church’s position on ABC, but to claim that access to contraception has nothing to do with healthcare makes no sense at all and undermines the Church’s moral arguments against contraception. If the Church’s moral stance is truly grounded in nature and logic, there’s no need to make things up.

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