Analysis
An emotion-laden dispute over a part of the new federal health care law is moving into its fourth week of mystery at the Supreme Court, with no hint of when the Justices will do something with it. What seemed like an initial, and quite temporary, order by a single Justice is becoming more durable.
At the center of the controversy in Little Sisters of the Poor v. Sebelius (application 13A691) is a traditional order of Roman Catholic nuns whose long history of helping the poor makes them especially sympathetic litigants. But also at the center of the dispute is the highly volatile issue of abortion and religious objections to it. By coincidence, this is unfolding right around the forty-first anniversary this week of Roe v. Wade.
It may be that these characteristics are making it even harder for the Justices to confront the legal issues at stake, complicating their choice among a range of options that are open to them — from doing nothing to taking on the case now for full-scale review.
Two groups of the Little Sisters — one in Denver, the other in Baltimore — have been challenging the Affordable Care Act’s so-called “contraceptive mandate.” That provision requires some employers with health plans for their workers to provide coverage of a variety of pregnancy-related services. It has been challenged in scores of cases by religious groups, such as the Little Sisters, and by business corporations owned and run by religiously devout families.
The Little Sisters’ faith leads them to oppose any role in abortion or abortion-related services, and they have told the Court that they are not willing even to sign a form that the government says would exempt them from the mandate. Even signing a form for that purpose, their lawyers have said, would make them a party to the mandate.
On the last day of December, on the eve of the day when the duty to sign that form in order to gain an exemption was due to take effect, their lawyers asked Justice Sonia Sotomayor to issue not just a delay in that duty, but an injunction that would prohibit its enforcement. (An injunction is the hardest thing to get from the Court as a temporary matter.)
They also asked the Court, as an alternative, to treat their plea as a request for full review of their challenge, during the Court’s current Term, in advance of any final ruling on it in lower courts.
Justice Sotomayor, before the end of the evening on New Year’s Eve, issued a temporary injunction against enforcement of the mandate and the form-signing duty. Her order said explicitly that she was doing so “pending the receipt of a response and further order” by her or by the full Court.
Three days later, the Obama administration met the deadline for filing a response. It urged the Court not to grant an injunction, arguing that there is no way that the Little Sisters qualified for it, and not to grant review of the case now, even before any federal appeals court had ruled on the specific claim the Little Sisters are making.
And, within hours of the filing of the government’s response, the Little Sisters’ lawyers filed their reply.
That was January 3. And that was the last sign of any action on the matter. There has been a lot of conversation among outsiders, especially advocacy groups on all sides of the dispute, about what may be going on inside the Court. None has any dependable notion of what that might be.
Among the questions which no one outside the Court can yet answer are these:
Is Justice Sotomayor still considering the issue on her own, or has she shared it with her colleagues? If she has shared it, have there been any discussions about what to do? Has it been referred to a formal conference of the Justices or, as such matters are usually handled, is it simply being pondered within the Justices’ private chambers?
Further, did Justice Sotomayor expect that there would, indeed, be “a further order,” or if she did expect one, what has happened to it? Might the matter just be left where it is with her “temporary” injunction in place against enforcement?
Without even a hint of what is going on among the Justices, here are what appear to be the options:
First, do nothing, including issuing no “further order.” In the meantime, the Little Sisters would be protected from having even to sign an exemption form, while their challenge proceeded in lower courts.
Second, issue an order extending the temporary order while the lower courts review the challenge, or an order vacating the temporary order and denying a more lasting injunction. The former would continue the protection of the Little Sisters, the latter would confront them with the choice of signing the exemption form, or continuing to resist. Either one of those options almost certainly would be done by action of the full Court, and very likely would divide the Justices. (If one of these options is in the offing, there very likely would be opinions to write, majority and dissents, perhaps, and that might be taking some time.)
Third, step right into the middle of this case, grant review in advance of any ruling by a federal appeals court, and call for formal briefing and oral argument sometime in the coming weeks. If that were done, the Little Sisters probably would get continued protection in the meantime.
Fourth, and the boldest step, decide the case right now, without briefing or oral argument, so that it is settled. That is such a highly unusual step that it probably can be put aside as a real possibility.
The “contraceptive mandate” is already under review by the Court this Term, in a consolidated pair of cases brought by business corporations whose owners object on religious grounds to the mandate (13-354 and 13-356). The Court is scheduled to hold a hearing on those cases on March 25. Briefing has already begun, so there seems little chance that, even if the Court were to agree now to rule definitively on the Little Sisters’ case, it would be ready in time to hear them at about the same time.
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