Female justices scold contraception ruling

The Supreme Court’s three female justices offered a stiff rebuke of an order that temporarily exempts a Christian college from rules that provide contraception under ObamaCare. 

Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan said in their dissent that the action appeared to retreat from the court’s majority decision in the Hobby Lobby case. 

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“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor, who was joined by Ginsburg and Kagan. “Not so today.”

The justices didn’t question whether Wheaton was entitled to the religious-nonprofit exemption from the contraceptive coverage requirement.

The issue is whether the requirement that the college must file the government form to its insurers and third-party providers violates its religious beliefs and “will make it complicit.” They argued that shouldn’t be the government’s decision. 

“Let me be absolutely clear,” Sotomayor 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.”

Sotomayor said the “claim ignores that the provision of contraceptive coverage is triggered not by its completion of the self-certification form, but by federal law.”

The college argued that “because it believes, as a religious matter, that signing the form would be impermissibly facilitating abortions and is therefore forbidden.”

Sotomayor argued that while she doesn’t question the college’s beliefs, the reasoning behind the request for the injunction fell far short of high court’s requirements. 

“The sincerity of Wheaton’s deeply held religious beliefs is beyond refute,” she wrote. 

“But as a legal matter, Wheaton’s application comes nowhere near the high bar necessary to warrant an emergency injunction from this court.”

On Thursday, the court’s majority said that for Wheaton “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.” 

The short and unsigned order on Thursday, which provides temporary relief to Wheaton College while its case is pending in lower courts, made it clear that doesn’t prevent employees at the college from receiving free birth control. 

“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the justices in the majority said. 

But Sotomayor argued that the temporary injunction could have broad ramifications that “will presumably entitle hundreds or thousands of other objectors to the same remedy.” 

“Even assuming that the accommodation somehow burdens Wheaton’s religious exercise, the accommodation is permissible under RFRA [Religious Freedom Restoration Act of 1993] because it is the least restrictive means of furthering the government’s compelling interests in public health and women’s well-being.”

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

The Religious Freedom Restoration Act was the same law at issue in the Hobby Lobby case. 

The majority in Hobby Lobby, she said, had held out the accommodation as a less restrictive alternative to requiring employers to pay for contraception coverage. 

“The grant of injunctive relief simply does not square with the court’s reasoning in Hobby Lobby,” she wrote.

Sotomayor also dissented in the Hobby Lobby case.

“Notifying the government rather than an insurance company makes no sense,” she said. 

“The court’s actions in this case create unnecessary costs and layers of bureaucracy,” she wrote.

“And they ignore a simple truth: The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”

Lower courts have denied requests for injunctions on Wheaton’s objection while the case moves through the courts.