The Supreme Court’s Sneaky, Outrageous Reversal on Contraception Coverage

The law, lawyers, and the court.
July 4 2014 2:59 PM

Quick Change Justice

While you were sleeping, Hobby Lobby just got so much worse.

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Justice Anthony Kennedy, in his own concurrence to Hobby Lobby, cautioned us not to read too much into the precedent that he had just helped set, insisting that the majority opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.” But Justice Ruth Bader Ginsburg, as she is so often reminded, was not born yesterday. In her Hobby Lobby dissent, she disputed the narrowness of the rule and charged that the court had just waded into a “minefield.” She was right.

In the hours after the Hobby Lobby ruling came down, the court was already kicking a host of cases back to various lower courts for reconsideration in light of the new rule. Three courts of appeals were told to revisit decisions, including at least one that involved an employer with religious objections to all 20 contraception methods guaranteed under the ACA, and not just the four ruled out in Hobby Lobby. Another is the appeal from an employer whose claims about burdens on his religious liberty started out as religious, but became a libertarian screed. “I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Michael Potter, the head of Eden Foods confessed to MSNBC’s Irin Carmon last fall. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.” That “religious” objection will now be taken seriously in the courts, bearing in mind, as Justice Alito cautioned, that “[i]t is not for us to say that their religious beliefs are mistaken or insubstantial.” These nearly instantaneous acts by the court quickly made the narrow little Hobby Lobby ruling seem like much, much more. (Meanwhile, at Guantánamo Bay, real-live detainees are now petitioning the court for the same personhood status as Hobby Lobby so that they too may exercise religious freedom.)

The second problem with the court’s emergency injunction in the Wheaton case is about the viability of this workaround. You would be forgiven for having been misled. In his majority opinion in Hobby Lobby, applying the test required under the Religious Freedom Restoration Act, Alito determined that the problem with the contraception mandate was that it was not the “least restrictive” means for the government to achieve its goals of allowing women access to contraceptive care. What the majority said in Hobby Lobby was: Given that the administration had already nipped in the mandate a little for religiously-affiliated schools, hospitals, and charities, it was clearly able to nip it the same way for the for-profits who raise the same objections. “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs,” Alito wrote. “HHS has already established an accommodation for nonprofit organizations with religious objections.” In other words, since the government had already created a legal workaround—the form that affirms the objection—that workaround was the narrowest way to achieve the government goals. If the Little Sisters of the Poor could sign a form that kicked responsibility for insuring contraception to the third-party administrator, Hobby Lobby should be allowed to sign the form as well.

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Although the opinion nowhere guaranteed that this compromise was not also going to prove to be a religious burden, Alito said it “achieves all of the government’s aims while providing greater respect for religious liberty.” Again, you would be forgiven for reading that to mean, as we briefly did, that the form implicitly did not burden religious liberty, even though the court did not directly decide the question. Or for expecting that the array of challenges pending in the lower courts (122 at last count) by nonprofits claiming that signing the opt-out form violates their religious liberty, might now be resolved in favor of the government. Days later, the respect it afforded religious liberty is not enough. The new unsigned opinion in Wheaton suggests that the fix to Monday’s problem—signing a form—is now a religious burden. At this rate, by next Tuesday the court will have decided that religious objectors can more readily opt out by way of a Bat Signal to HHS. Which said workaround, in turn, will soon be found to offend religious freedom.

Justice Sotomayor, in Thursday’s dissent, identified the fatal flaw of the majority opinion in Hobby Lobby. “Let me be absolutely clear,” she wrote, “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.” She also pointed out, in case anyone seeks to argue that the extension of the Hobby Lobby arguments to the not-for-profit claims was as “narrow” as the decision in Hobby Lobby was purported to be: “Today’s injunction thus risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage. In addition, because Wheaton is materially indistinguishable from other nonprofits that object to the Government’s accommodation,” she goes on to add, “the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy.”

Not everyone was fooled by the majority’s promise that the decision in Hobby Lobby was narrow. But the speed with which the court has loosened the dam on this is stunning. While the court has told us that we are not allowed to question the sincerity of corporations’ professed religious beliefs, we remain free to question the sincerity of the court’s pinky promise that the Hobby Lobby decision would have a limited scope. At the end of this term, many people sighed a breath of relief that the outcome of Hobby Lobby was not as bad as we’d feared. It will be. The only thing turtlelike about the court’s behavior in Hobby Lobby was that an impenetrable shell protects it from the consequences of what it has just done.

Dahlia Lithwick writes about the courts and the law for Slate

Sonja West is an associate professor at the University of Georgia School of Law.

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