Exclusive: New Developments In Little Sisters Of The Poor Case

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Kevin Daley Supreme Court correspondent
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The Department of Health and Human Services is taking new steps toward resolving a dispute with the Little Sisters of the Poor over the Affordable Care Act contraception mandate, The Daily Caller News Foundation has learned, after the Supreme Court demanded the two groups work out a compromise.

In a major step towards resolving the challenge to the mandate brought by the Little Sisters of the Poor, HHS has issued a request for information (RFI) soliciting input from any interested parties to determine what steps could be taken to resolve the Little Sisters objections.

The Little Sisters argue that ACA’s requirement that they include access to contraception and abortifacients in their insurance plan infringes on their religious beliefs. The Supreme Court declined to rule on the merits of the Little Sisters challenge in May in a rare move, and remanded the case back to a lower court so the parties could reach a compromise.  (RELATED: Supreme Court Sends Obamacare Contraceptive Back To Lower Courts For Compromise)

“The Departments issued this request for information to provide all interested stakeholders an opportunity to comment on several specific issues raised by the supplemental briefing and Supreme Court decision in Zubik v. Burwell,” HHS press secretary Marjorie Connolly told The DCNF.

“The Departments are also committed to respecting the beliefs of religious employers and issued this request for information to determine whether modifications to the regulations could resolve certain religious objections while still ensuring that women seamlessly receive full and equal health coverage, including contraceptive coverage,” she added.

The Becket Fund for Religious Liberty, a public interest law firm which represents the Little Sisters, welcomed the development.

“We’re in favor of the government seeking out information and looking for ways to pursue its goals without involving Little Sisters of the Poor and people like them in their health plan,” Mark Rienzi, Senior Counsel at the Becket Fund told TheDCNF. “If the government wants to have a process where it asks a lot of people for ways it can get people contraceptives without involving nuns, we’re not opposed to them asking for the information.”

“Our view is, there’s a million ways to get people contraceptives without involving nuns and it’s good for the government to look into that,” he continued.

The Little Sisters were encouraged by the ruling by the May ruling. “This is a game-changer,” Rienzi said in May. “This unanimous decision is a huge win for the Little Sisters, religious liberty, and all Americans.”

Nonetheless, HHS continues to argue that the accommodation plan which the Little Sisters are challenging remains consistent with the Religious Freedom Restoration Act. “As the government explained in its briefs in Zubik, the Departments continue to believe that the accommodation under the existing regulations is consistent with RFRA, a conclusion supported by eight of the nine courts of appeals to consider the issue,” an administration official told the DCNF.

The group was optimistic because the ruling recognized that the government’s argument had changed significantly over the course of the litigation, leading to frank admissions from government lawyers that may benefit the order’s case. The government had previously argued that they could deliver contraception coverage to Little Sisters employees without directly involving the Little Sisters insurance plan. Federal lawyers then admitted during oral arguments at the Supreme Court that providing coverage would be impossible without the Little Sisters’ plan and participation.

“Given the gravity of the dispute and the substantial clarification and refinement in the positions of the parties, the parties on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans ‘receive full and equal health coverage, including contraceptive coverage,’” the ruling stated.

Should little come of the RFI, odds are high the litigation will return to the Supreme Court.

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