Supreme Court Justice Samuel Alito signed an order Wednesday temporarily granting relief to a handful of Pennsylvania religious organizations from a lower court's decision that they must notify insurers of their intention not to provide birth control to employees, or face fines under the Affordable Care Act.
The order stays a ruling of the 3rd U.S. Circuit Court of Appeals that would require the organizations to fill out a form explaining to insurers that they will not provide contraceptive coverage to their employees. Filling out the form would allow the government to work with insurers to provide that coverage to employees instead. The parties involved in the lawsuit include Geneva College, the Roman Catholic Diocese of Pittsburgh and David Zubik, bishop of the Roman Catholic Diocese of Pittsburgh.
The organizations had argued that filling out the form violated their religious beliefs because it compelled them to help employees get contraceptive coverage. The 3rd Circuit, however, ruled that the form “places no substantial burden” on the religious organizations to do so.
The government has created a different workaround since the organizations filed the lawsuit. The revised solution requires organizations that don't want to provide contraceptive coverage to notify the government and give the government information about their healthcare plans. Many religious not-for-profits, however, still take issue with that workaround, saying they don't want any part of facilitating contraceptive coverage.
Leaders of the Becket Fund for Religious Liberty, which is involved in similar but separate cases, hailed Alito's order as another in a series of signs that the government is losing its battle to enforce the ACA's contraception mandate on religious organizations.
“How many times must the government lose in court before it gets the message?” said Lori Windham, the Becket Funds' senior counsel, in a statement. “The government really needs to give up on its illegal and unnecessary mandate. The federal bureaucracy has lots of options for distributing contraceptives—they don't need to coerce nuns and priests to do it for them.”
But Douglas Laycock, a professor at the University of Virginia Law School, said such orders are hardly rare and the decision may not stick. The order, he noted, only lasts until Monday, by which time the government is supposed to file a response. Additionally, he said in an email, Alito is “probably the most sympathetic to these claims of any member of the court.”
Once the government responds, Alito may refer the matter to the whole court, or decide it himself as the justice responsible for the 3rd Circuit. If Alito refers the matter to the whole court, five votes would be needed to keep his stay in place.
Laycock said it might be difficult for the religious organizations in the case to get Justice Anthony Kennedy to support the stay, given that he sided with the majority in Hobby Lobby v. Burwell based on the availability of that form. In Hobby Lobby, the justices voted 5-4 that closely held companies should not have to directly provide birth control coverage if their owners objected for religious reasons.
Alito issued the order Wednesday after a request from the organizations to do so, pending their filing of a petition with the Supreme Court to hear the case.
