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.

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.

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.

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. Follow her on Twitter.

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