Supreme Court requests additional briefing on key Obamacare case

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WASHINGTON, D.C. – Less than a week after an order of Catholic nuns asked the U.S. Supreme Court for a religious exemption to the contraceptive mandate of the Affordable Care Act (also known as “Obamacare”), the Court took the unusual step of asking for additional briefing, telling both sides to come up with alternative ways to avoid forcing the nuns to violate their religious beliefs.

The Little Sisters of the Poor are a 177-year-old order of religious women who care for the underprivileged elderly in 27 U.S. cities, including Somerville, Massachusetts. The sisters claim that under the Religious Freedom Restoration Act they are entitled to an exemption from a regulation, issued by the Department of Health and Human Services under Obamacare, that requires all employer health plans to provide coverage for contraceptives, sterilizations and some abortifacients. The Little Sisters argue that some of the drugs and services that the law covers are not permissible under Catholic teaching.

Under an accommodation offered by HHS, religious organizations do not have to pay for coverage of contraception or abortion-inducing drugs themselves; however, they are required to authorize the insurer or health plan administrator to provide separate coverage. The Obama administration claims that this opt-out provision is sufficient to protect religious groups from violating their sincerely held beliefs.  But the Little Sisters argue that this accommodation still requires them to violate their faith.

The Court must now decide whether the government can force the Little Sisters to comply with the mandate, even though one in three Americans, large corporations like Chevron, Exxon, and Pepsi, and the U.S. military are exempt or “grandfathered” out of the regulation’s requirements, and even though the same services could be offered through the government exchanges.

Last week, the Court heard ninety minutes of  oral argument in the case the case, Zubik v. Burwell.   Based on frequent interruptions and questions asked by the eight justices, the Court seemed to be headed for a 4-4 tie that would leave in place the lower court’s ruling in favor of the government.  The controversial case could factor into the fight over Obama’s nomination of Judge Merrick Garland to the Supreme Court and is also expected to highlight religious liberty issues in the presidential campaign.

The Court today asked both the government and the Little Sisters to file additional briefs by next month.  A decision is expected in June.