A group of nursing homes run by Catholic nuns in Colorado really don’t want to fill out a form that announces to the government that they are invoking a religious exemption from the federal rule requiring them to provide birth control coverage to their employees. They don’t want to fill out that form so badly that they sued, claiming that requiring them to fill out the form violates their religious liberties. On Friday, the Supreme Court issued a temporary order holding that they do not have to fill out the form. Instead, they will need to send the government the exact same information required by the form.
The background here is that most employers are required to include contraception coverage in their employer-provided health plans. Certain religious non-profits are exempt from this requirement, but the government has to have some way to identify who is and is not invoking this exemption. Hence the form, which is the mechanism a group uses to inform the government that they wish to invoke their exemption.
The nuns argue, incorrectly, that this form may also be used to induce their insurer to provide birth control to the workers in their nursing homes though a separate arrangement. That may be true in some cases, but it is not true here, as the nuns use an insurer who is also exempt from compliance with the requirement to provide birth control. So the punch line is that all the nuns needed to do is fill out the form, and then no one would provide birth control to anyone. Nevertheless, they did not wish to do this.
Under the Court’s order, the nuns have to “inform the Secretary of Health and Human Services in writing” that they intend to invoke their exemption, but they “need not use the form prescribed by the Government and need not send copies to the third-party administrators” of their health plan. So the nuns essentially won the right to use a different piece of paper than the government wanted them to use to supply the government with exactly the same information it requested in the first place. Also, this order only lasts “pending final disposition of the appeal” by a federal appeals court. And the justices emphasize that “this order should not be construed as an expression of the Court’s views on the merits.”
It’s tough to read this as anything other than a punt. The nuns won’t have to file a specific form that they harbor an objection to. The government will get the information it wants. No one will have to provide birth control to anyone — which they wouldn’t have had to do anyway if the nuns had just filed the form in the first place. And this is all very temporary, and has nothing to do with how the Court will ultimately decide the case.
The justices, in other words, look like they really want this case to go away.