This post also appears on scotusblog.com
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.
The Justice Department filed its response to the Alito request when it was due on April 20, urging that there be no delay of the Third Circuit’s ruling, because all of the appeals courts that had dealt with the issue rejected the claims of non-profit religious groups, such as colleges and hospitals, that the birth-control mandate violated their religious beliefs and their rights under the federal Religious Freedom Restoration Act.
The Obama administration has taken several steps to give such non-profit groups a way to avoid being directly involved in providing that coverage to their female workers, or, for colleges, their students. Many non-profits, though, have gone ahead with their lawsuits, contending that those gestures do not go far enough to protect their religious objections to birth control.
After the government’s April response, there was no further action by Justice Alito or by the Court. On May 21, the Solicitor General notified the Court of two more appeals court rulings with the same result. There was no response to that letter from Alito or the Court.
On Tuesday, Verrilli reported the Fifth Circuit’s ruling, issued on Monday, to the Court and asked the Court’s Clerk to pass that decision and his letter “to Justice Alito.”
Because this series of events was in process, three petitions for review on the non-profits’ claims have been filed at the Supreme Court — one, a formal appeal of the Third Circuit’s ruling, and two from decisions by the U.S. Court of Appeals for the District of Columbia Circuit. Although the non-profits have lost in each test in the appeals courts, those petitions argue that the appeals courts are divided on how to apply federal law on the rights of religious freedom.
The Court is not likely to act on any of the new cases until its next Term, starting in October. It seems likely that, as these cases develop, the Court will be asked to put the appeals courts’ rulings on hold, as was done with the Third Circuit ruling.