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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In a dissent, Justice Sonia Sotomayor has accused the court of going back on its word.

Photo by Jose Cabezas/AFP/Getty Images

The architecture of the U.S. Supreme Court Building is rife with turtles. There are turtles holding up the lampposts in the courtyard and turtles engraved in the stone decor. You can buy turtle coffee mugs at the gift shop. The turtle is said to represent the slow and deliberate pace of justice. This is an institution, the turtle tells us, that moves slowly, deliberately, and removed from the knee-jerk pace of the political branches.

Yet moments before they adjourned for their summer recess, the justices proved they can act quite quickly and recklessly when it comes to violating the terms of a controversial opinion they handed down only days earlier. It’s as if the loaner car the court gave us in the Hobby Lobby ruling broke down mere blocks from the shop.

In Burwell v. Hobby Lobby, the Supreme Court ruled that it was a “substantial burden” on the religious freedoms of closely-held corporations for the government to require them to provide contraception as part of their employee health care plans. The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.

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Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was also unconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.

This new case involves Wheaton College, an evangelical Protestant liberal arts college in Illinois. A majority of the court granted Wheaton a temporary injunction allowing it to refuse to comply with the workaround, or “accommodation,” the court had just held up as the answer in Hobby Lobby. Under the ACA, churches have always been categorically exempt from the mandate. The law further allows religious nonprofits that don’t want to offer contraception to submit a short form, known as Form 700, which affirms their religious objection to providing contraception. Form 700 enables the company’s insurers or third-party administrators to cover the birth control instead of the employer. Easy peasy, right? Sign the form and you don’t have to provide the coverage that violates your religious beliefs. In Hobby Lobby, Justice Alito wrote that this solution “achieves all of the government’s aims while providing greater respect for religious liberty.”

Wheaton, however, along with many other religious not-for-profits, have long objected to this very workaround. They filed lawsuits claiming that the mere fact of signing a form noting their religious objection to contraception coverage triggered third parties to provide the contraception, which triggered women to have access to morning-after pills and IUDs, which in their view were akin to abortions, and thus violated their religious consciences. Signing the form, they said, was the same as actually providing the contraceptives themselves. It’s the butterfly effect of contraception. Any time Wheaton flaps its religious-conscience wings, a woman somewhere ends up with an IUD, and Wheaton’s religious liberties are violated.

And Thursday night a majority of the court agreed. The order is a preliminary injunction. The court will need to decide this and dozens of similar cases in the future. The justices caution that this in no way reflects their views of the future cases. But for our purposes, let it be known that the very workaround the court gave to religious objectors only four days earlier now likely violates their religious liberty as well.

For the court to issue an emergency temporary injunction is a truly extraordinary act. Even more extraordinary was that justices filed a 16-page barnstorming dissent. And those dissenters share a highly relevant personal characteristic: a uterus. That’s correct, the three dissenting justices last night were the court’s three women: Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. In the event that the religious and gender rift at the court was not already painful to behold, the dissent, penned by Sotomayor, is a forceful and unwavering rejection of both the majority’s reasoning and tactics. “I disagree strongly with what the court has done,” Sotomayor wrote. “Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

The dissenters take issue with several aspects of the majority’s act. First is the professed scope of the Hobby Lobby decision. Try to remember all the way back to Monday, when, writing for the majority, Justice Alito folded up the decision into something he characterized as nearly trivial. Look, it practically fits into his pocket! The decision only applied to family-owned, closely-held corporations, he assured us. The ruling was not going to unsettle a thing. “Our decision in these cases is concerned solely with the contraceptive mandate,” he soothed. Nothing about the holding would undermine an employer’s responsibility to provide vaccines to his employees, or to abide by existing employment and antidiscrimination laws. “Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs,” he wrote. But nowhere in his opinion did Alito tell us how or why there would be no such fallout. It was an assertion; or, in light of what happened next, a nice little act of judicial three-card monte.

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