A Hint for Little Sisters?
As Supreme Court-watchers know, before today there were actually two birth-control lawsuits winding their way through the courts. Hobby Lobby (decided today) was about whether corporations could be required, against the religious beliefs of their owners, to provide insurance that covers birth control or pay a large penalty. The Tenth Circuit case Little Sisters, meanwhile, has to do with the "accommodation" the administration gave to religious nonprofits.
Under the accommodation, these employers sign a statement saying they don't want to provide birth control -- and then, instead, the insurer provides birth control at its own expense. Well, actually, there is no expense, according to the administration, because providing birth control saves enough money to pay for itself. So regardless of whether a nonprofit avails itself of the exemption, everyone will pay the same amount of money and the plan will cover the same services, including birth control. For fairly obvious reasons (I fleshed them out here), many religious nonprofits don't feel particularly accommodated.
The Hobby Lobby ruling explicitly says it's not also a Little Sisters ruling. But I think it might contain a clue (citations removed):
We certainly do not hold or suggest [as the dissent claims] that [the Religious Freedom Restoration Act] "demands accommodation of a for-profit corporation's religious beliefs no matter the impact that accommodation may have on ... thousands of women employed by Hobby Lobby." The effect of the HHS-created accommodation on [female employees] would be precisely zero.
I'm not a lawyer, but I think this argument -- which emphasizes the accommodation as an alternative to forcing companies to provide birth-control coverage, and uses it to downplay the concerns of the dissent -- will look a bit odd if the Court turns around and kills the accommodation.
Over at NRO, however, Ed Whelan (who is a lawyer!) says he sees hints the Little Sisters will win.
Robert VerBruggen is editor of RealClearPolicy. Twitter: @RAVerBruggen