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Supreme Court Asks for Help in Birth Control Case

Justices appear to be looking for ways to avoid a 4-4 tie

The case is the latest to take up the contraception mandate in the Affordable Care Act. (Photo By Tom Williams/CQ Roll Call)
The case is the latest to take up the contraception mandate in the Affordable Care Act. (Photo By Tom Williams/CQ Roll Call)

The Supreme Court took the unusual step Tuesday of asking the government and religious nonprofit groups to pitch solutions to the main quandary in the latest challenge to the health care overhaul law.  

In a two-page order, the justices directed the opposing sides in the dispute over the law’s contraception mandate to file additional briefs in the case by April 12. In the process, the justices even suggest their own practical solution to the case.  

The order comes less than a week after the eight justices appeared evenly divided during oral arguments in the case that pits the government’s aim to provide contraception coverage to all women against the nonprofit’s objection to their role in the process.  

The mandate in the 2010 health care law requires most employers to offer birth control coverage to their employees as part of health insurance. Religious nonprofits can be exempted if they notify the government in writing — called an accommodation — and the government then arranges the coverage through the group’s existing insurance plan at no cost to the group.  

But the nonprofits who are the petitioners in this case, including the Little Sisters of the Poor, an organization of Roman Catholic nuns, say that makes them complicit in providing birth control against their beliefs.  

The Supreme Court said the new briefs should address whether and how that coverage could happen without any involvement from the religious groups, the order states.  

“The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without any such notice from petitioners,” the Supreme Court order states.  

The justices go on to suggest what seems like their own possible solution: Have religious nonprofits, when they are obtaining health insurance plans for their employees, inform their insurance company that they do not want their plan to include contraceptive coverage.  

The religious nonprofits would have no legal obligation to provide the coverage, would not pay for it and would not be required to submit any separate notice to their insurer, the government or employees, the court wrote in the order.  

That way, the insurance company could then separately notify employees “that the insurance company will provide cost-free contraceptive coverage, and that such coverage is not paid for by petitioners and is not provided through petitioners’ health plan,” the court wrote.  

Whether that would satisfy either side is an open question. The briefs must be filed by April 12, and then each side can reply to the other’s brief by April 20.  

The court appears to be searching for a way to avoid a 4-4 tie. Neither side would be completely satisfied with the result, since that would leave the issue unresolved nationally. Such a decision would affirm the Obama administration’s win on the issue in eight federal appeals courts, but also leave in place a conflicting decision from one federal appeals court.  

The justices must decide the case — the fourth to reach the high court concerning aspects of the 2010 health care overhaul law — before the end of the term in June.  

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