The federal government’s top Supreme Court advocate moved again on Tuesday to make sure that the Justices are keeping up with the government’s success in heading off a round of new challenges to the birth-control mandate in the Affordable Care Act. In the second letter of its kind, Solicitor General Donald B. Verrilli, Jr., sent along a copy of a new decision — with the same outcome — this time, by the U.S. Court of Appeals for the Fifth Circuit.
Instead of seeking to alert the full Court as he had done on May 21, Verrilli asked that this notification go to Justice Samuel A. Alito, Jr. It has been more than two months since Alito, on April 15, blocked a decision by the U.S. Court of Appeals for the Third Circuit with what had appeared at the time to be only a temporary order. However, the order remains in effect, unchanged.
The April 15 order said that the Third Circuit’s ruling would be put on hold until the federal government had filed a response to the non-profits’ plea for delay. The government response was due five days later. The order also went on to say that the delay would last pending “further order” by him or the full Court. That kind of language ordinarily signals that another order would be coming after both sides had offered their views, although there is no guarantee of such an additional order.
Because Alito apparently has not passed the issue along to his colleagues, and has taken no action himself, it may be that the order will be left in effect until the Court decides whether or not to grant review of one of the developing cases on the issue. In the Court’s previous decision on the birth-control controversy, a year ago in the case of Burwell v. Hobby Lobby Stores, it dealt only with the challenge to the mandate by for-profit businesses owned by devoutly religious families. sparing them from having to provide the coverage required by the ACA…