U.S. Supreme Court

SCOTUS issues second hit to contraceptive mandate; dissenters claim order rewrites Hobby Lobby


Wheaton College. Image from Shutterstock.

The U.S. Supreme Court issued an injunction on Thursday allowing a Christian college in Illinois to bypass regulations requiring it to fill out a form noting its religious objections to providing birth control coverage under the Affordable Care Act.

The court acted on an application for an emergency injunction by Wheaton College, which contended that filling out a form and sending it to its health insurer, thereby authorizing the insurer to pay for the contraceptives, makes the college “complicit in grave moral evil.”

The court’s three female justices dissented, claiming the order undermines confidence in the court because it departs from language in the court’s 5-4 contraceptive decision on Monday in the consolidated cases of Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties Corp. v. Burwell.

The New York Times, the Wall Street Journal and SCOTUSblog have coverage. How Appealing links to the order and dissent (PDF) and links to additional coverage.

Religiously affiliated organizations were allowed an exemption from the contraceptive mandate as long as they filled out “EBSA Form 700” for their insurers and third-party administrators noting their religious objections. The court’s order on Monday said Wheaton College need not fill out the form as long as it notifies the secretary of the Department of Health and Human Services in writing that it is a nonprofit group that holds itself out as religious and has religious objections to providing coverage for contraceptive services.

The order said it should not be construed as a decision on the merits. Justice Antonin Scalia concurred in the result.

Lawyer Walter Dellinger, who was solicitor general under President Bill Clinton, told the Times that the order is a second blow to contraceptive coverage after the Hobby Lobby decision last Monday, which held that private corporations were also eligible for an exemption from the requirement when their owners had religious objections.

The majority in Hobby Lobby noted that employees of religious companies wouldn’t be left without contraceptive coverage because of the exemption that allows insurers to pick up the cost of coverage.

“Before the Hobby Lobby ruling, women had guaranteed contraceptive coverage as part of their employment health insurance,” Dellinger told the Times. “After today, it is clear that their access to contraception is by no means guaranteed given the administrative complexities the court has now imposed upon” the Department of Health and Human Services.

Justice Sonia Sotomayor dissented to Thursday’s order in Wheaton College v. Burwell. She was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

“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,” Sotomayor wrote.

“That action evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution,” Sotomayor said.

“The court’s approach imposes an unwarranted and unprecedented burden on the government’s ability to administer an important regulatory scheme,” Sotomayor said. She noted the court’s order doesn’t require the religiously affiliated group to notify HHS of its insurer, and she asked how HHS can determine this information in other cases of religious objections.

“Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third-party administrator nationwide?” Sotomayor asked. “And, putting that aside, why wouldn’t Wheaton’s claim be exactly the same under the court’s newly fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage. Surely the court and Wheaton are not just objecting to the use of one stamp instead of two in order to avail itself of the accommodation.”

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