The Supreme Court yesterday upheld a temporary injunction against enforcement of the HHS mandate for the evangelical Christian Wheaton College, despite the Obama administration’s arguments that its “accommodation” to the HHS mandate does not place a substantial burden on the college’s religious freedom.
The order—although only for a temporary injunction while the merits of the College’s case are decided—is the strongest sign yet that the high court may find the “accommodation” violates the federal Religious Freedom Restoration Act (RFRA).
The Obama administration’s “accommodation” is designed to ensure that employees get free insurance coverage for sterilization and contraception, including drugs that cause abortion, even when religious employers refuse to provide the coverage. The scheme, however, requires the objecting nonprofits to cooperate and compromise their religious beliefs by signing a document, EBSA Form 700, that authorizes the coverage.
Late yesterday, the Court temporarily released Wheaton College from that requirement:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators.
There had been some speculation that the Court might not uphold its injunction issued Monday immediately following its ruling in Burwell v. Hobby Lobby, Inc., which found that the HHS mandate is an “undue burden” on the religious freedom of certain for-profit companies. In his majority opinion for Hobby Lobby, Justice Samuel Alito cited the nonprofit “accommodation” as an example of a lesser burden that the government could have imposed on companies. Because of that, it was widely speculated that the Obama administration would, in fact, respond to Hobby Lobby by expanding the “accommodation” to include for-profits that object to the HHS mandate for religious reasons.
Justice Alito, however, made it clear in his opinion that the Court was not suggesting the constitutionality or legality of the “accommodation,” which was not under consideration in the Hobby Lobby case. Instead, it appears that he intended simply to point out that the Administration’s enforcement of the HHS mandate was hardly the least possible burden to a for-profit company’s religious liberty, if the Administration had already offered measures to nonprofits that are intended to lessen the burden.
On Wednesday morning, the Obama administration submitted a brief to the Court that argued for lifting the injunction for Wheaton College, resting on the claim that Justice Alito had prescribed the Administration’s “accommodation” as the appropriate alternative to the HHS mandate.
Were that true, the Court would have had no reason to approve an injunction for Wheaton College on Monday, nor to uphold the injunction yesterday. But a solid majority on the Court seems to have done so.
Only three of the Supreme Court justices—Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor—issued an unusually long dissent to the Court’s order yesterday, agreeing with the Obama administration’s interpretation of Hobby Lobby. They went so far as to chide their colleagues and accuse them of hypocrisy in Justice Alito’s Hobby Lobby opinion:
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 RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.
Interestingly, it was Justices Stephen Breyer and Sotomayor who dissented from Monday’s injunction for Wheaton College, but no explanation was issued.
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