Keep Slicin’ That Prosciutto
By 
An interesting development in Hobby Lobby Part Deux:
Many observers left last week’s contraceptive coverage oral argument at the Supreme Court convinced that the court was headed to a 4-4 tie, with Justice Anthony Kennedy siding with the religious objectors opposing the Obama administration’s plan to cover their female employees’ contraception. On Tuesday, less than a week after oral argument, the court surprised everyone with a two-page order asking the parties for more information on their positions.
“The parties are directed to address whether contraceptive coverage could be provided to petitioners’ employees, through petitioners’ insurance companies, without … notice from petitioners,” the order read in part. It asked for additional briefs due from the plaintiffs by April 12 and from the government in response by April 20.
“This is a twist I did not expect,” said Brigitte Amiri, senior staff attorney at the American Civil Liberties Union, which filed a brief in support of the Obama administration.
Advocates for contraceptive access were cautiously optimistic at the order, which suggested that days after the court’s conference to take an initial vote on the case, it would not easily dispense of the case with a deadlock — as it did in a union dues case Tuesday.
[…]
Tuesday’s order seems to follow up on a question Justice Elena Kagan asked at oral argument: ”Is there any accommodation that the government would offer that would in fact result in women employees of your clients, or students of your clients, getting health care as part of an employer-based plan or a student-based plan, getting contraceptive coverage? Is there any accommodation that would be acceptable?”
The plaintiffs’ attorney, Noel Francisco, did not quite answer. “Your Honor, possibly so, possibly not, and if I could explain,” he said. “We’ve not been offered that kind of alternative to consider.”
The optimistic take is that Kennedy is calling the bluff of the objectors, and when they admit there’s no accommodation they will accept he’ll have seen enough and make it 5-3 for the issue to mostly go away. The pessimistic one is that Kennedy will keep the anti-contraception merry-go-round going. The former is probably more likely, but I don’t claim to be able to read Kennedy on this one.