Friday, January 24, 2014

Not With a Bang . . . (The Supreme Court wisely preserves the status quo in Little Sisters)

Marty Lederman

The Supreme Court issued this one-paragraph order today in the Little Sisters case:
The application for an injunction having been submitted to Justice Sotomayor and by her referred to the Court, the Court orders:  If the employer applicants inform the Secretary of Health and Human Services in writing that they are non-profit organizations that hold themselves out as religious and have religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicants the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of the appeal by the United States Court of Appeals for the Tenth Circuit.  To meet the condition for injunction pending appeal, applicants need not use the form prescribed by the Government and need not send copies to third-party administrators.  The Court issues this order based on all of the circumstances of the case, and this order should not be construed as an expression of the Court’s views on the merits.
This deftly crafted paragraph is a fine example of Solomonic judgment.  It leaves things just as they were and, for all practical purposes, just as they would have been in any event, as I explained here:  The Little Sisters affirm that they are opposed to providing contraceptive services--something they've already informed the government of, in their RFRA complaint itself!--and their employees will therefore not receive any such coverage, since the government does not have authority (even absent the Court's order) to require the objecting third-party administrator, Christian Brothers Services, to offer the coverage, and the government has not yet figured out any way to amend its regulations to guarantee coverage to women employees in the rare cases (such as this one) where (i) their employer is a nonprofit religious organization that objects to such coverage; (ii) the employer self-insures; (iii) the health plan is a "church plan"; and (iv) the third-party administrator of the church plan itself objects to providing such coverage.  

Now that that tempest in a teapot has been quelled, we can move on to what truly matters:  The Hobby Lobby/Conestoga Wood for-profit employer cases in the Supreme Court, and the Notre Dame nonprofit employer/university case in the Court of Appeals for the Seventh Circuit.

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