The move suggests the justices are looking for a way to avoid deadlock and balance the religious liberty claims of the the non-profits against the law's requirement for a full range of contraceptive coverage at no cost. Just last week, the justices seemed closely divided in a challenge from religious non-profits -- including an order of nuns -- to the contraceptive mandate of the Affordable Care Act, also known as Obamacare.
The move comes after the sudden death of Supreme Court Justice Antonin Scalia left only eight justices to hear some very controversial cases, making the current challenge to avoid 4-4 splits.
The justices would be particularly interested in avoiding a 4-4 split in this case, because such a ruling could cause confusion across the country. A tie would mean that the justices would simply be affirming the lower court decisions at hand, but it would also mean that other lower court decisions that have gone the other way would still be on the books. It would mean that not everyone in the country would be playing by the same rules.
In Tuesday's order, the justices point out that as things currently stand, the non-profit groups have to either submit a form to the federal government or to their insurer stating their objections on religious grounds. The groups have long argued that the form or the notice to the government makes them complicit in committing what they consider against their beliefs.
The order asks both sides to consider an alternative and address the question whether "contraceptive coverage could be provided to petitioners employees, through petitioner's insurance companies, without any such notice from petitioners."
The order was praised by Mark Rienzi, a lawyer for one set of plaintiffs called the Little Sisters of the Poor.
"This is an excellent development. Clearly, the Supreme Court understood the sisters' concern that the government's current scheme forces them to violate their religion," he said.
Others, however, weren't exactly sure what the order meant.
Ian Millhiser of the progressive Center for American Progress wrote
that it seemed like the court's order might produce an eventual opinion that would "ensure that most women still receive birth control coverage seamlessly."
But he wondered if it was possible for the federal government to put such a solution in place without changing federal law.
"Employer benefits are governed by complex federal statutes such as the Employee Retirement Income Security Act," he said.
Gregory M. Lipper of Americans United for Separation of Church and State, who wrote a brief in support of the government, believes that Justice Anthony Kennedy -- whose vote could be critical -- is behind the order. He said it "puts the challengers in a bind."
"If they object to even the court's proposal, then it's even clearer that they are trying to block women's access to contraceptive coverage from third parties," he said.
The court asked for the briefs to be filed by the end of April.