The Supreme Court’s Most Unusual Order in the Little Sisters Case

Just this morning, Lyle Denniston was pondering if we’d ever see another order in the Little Sisters case (involving the contraception mandate).  Well now we have our answer: a single paragraph, apparently unanimous order (or at least no noted dissents). It is a partial win for the Little Sisters, who don’t have to fill out a form indicating they have a religious objection to the contraception mandate in the healthcare law.

What took so long? It doesn’t take too long to write a paragraph after all.

This appears to be the product of some delicate negotiating behind the scenes to achieve unanimity. Apart from the statement in the order that nothing here should be construed as a ruling on the merits, it is an odd kind of victory for the Little Sisters: they made the claim that even filling out the form saying they were not participating in the contraception program (which would trigger insurance companies to pay for it directly) was a form of participating in the program. So they win by not having to fill out the form.  But they have now to send a letter containing essentially the same disavowal in order to not be covered. Presumably this triggers the very same thing: the insurance companies providing the contraceptive coverage directly.

If the Little Sisters has a genuine religious objection to not filling out the form (and I assume they do have a genuine objection), how is this any different?

So what looks like a victory against having to do a symbolic act may really be a defeat in having to do the nearly identical symbolic act.


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