High Court order on contraceptives hints at possible compromise

The U.S. Supreme Court called for additional briefing in a divisive clash over contraceptives and a U.S. Department of Health and Human Services (HHS) mandate stemming from the Patient Protection and Affordable Care Act (PPACA) preventive services package provision, issuing an unusual order that suggests at least one justice may be eyeing a possible compromise.

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The order comes less than a week after an argument session hinted at a potential split in the case, which involves the Obama administration’s effort to ensure that employees have insurance coverage for birth control even if they work for a religious group that objects.

The court Tuesday asked the two sides to consider an alternative means for the administration to accomplish its goals without violating the rights of the religious groups.

The court asked the two sides to file their briefs by April, signaling the justices want to decide the issue during the term that ends in June. The court has been operating with only eight members after the death of Justice Antonin Scalia, and the contraceptive case could produce a 4-4 deadlock.

The dispute stems from the PPACA requirement that contraceptive coverage be included in the preventive services benefits package built into non-grandfathered employee and student health plans. The court’s four liberal justices suggested last week that the administration had adequately accommodated faith-based employers and universities by letting them opt out and have their insurer provide the required birth-control coverage.

Justice Anthony Kennedy, the potential fifth vote for the administration, appeared skeptical, and the new order may reflect his effort to navigate a middle path.