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The Supreme Court sided against birth control again, and Sotomayor is not happy about it

Supreme Court Justice Sonia Sotomayor
Supreme Court Justice Sonia Sotomayor
Alex Wong/Getty Images News

The Hobby Lobby decision wasn't the Supreme Court's last word on birth control.

Late Thursday, six justices signed onto an injunction that allows Wheaton College, a religious university, more flexibility to not comply with Obamacare's contraceptive mandate. It led to a scathing dissent from the court's three female members.

"Those who are bound by our decisions usually believe they can take us at our word," Justice Sonia Sotomayor wrote, in a dissent joined by Justices Ruth Bader Ginsburg and Elena Kagan. "Not today."

Sotomayor went on to argue that the injunction would risk stripping "hundreds of Wheaton's employees and students of their legal entitlement to contraceptive coverage."

The Wheaton College case centers on a Christian liberal arts college in Illinois. It is part of another wave of lawsuits against Obamacare's contraceptives mandate that the recent Hobby Lobby decision did not resolve.

These lawsuits challenge the flexibilities that the Obama administration has already offered religious non-profits, arguing that the existing accommodations don't do enough to protect religious liberty.

What is the Wheaton College case about?

Back in February 2012, some religiously-affiliated non-profits (particularly universities and hospitals) successfully pushed the Obama administration to offer an "accommodation" that would allow them to opt-out of the contraceptives mandate.

The idea behind the compromise: non-profits wouldn't pay for contraceptives themselves but instead have their health insurance plan foot the bill for birth control.

In order to apply for this compromise, non-profits are supposed to use a very specific form to certify their opposition to providing their employees with contraception. The form, for the especially curious, is Employee Benefits Security Administration form 700 (EBSA 700).

After that form is filed, insurers are supposed to pay for the contraception themselves without passing the cost on to the religious organizations. Insurers recoup their losses through reduced fees paid to the government.

Wheaton College, and dozens of other non-profits, object to having to file this form on grounds of religious freedom. Wheaton objects to the same birth control methods that were at issue in Hobby Lobby, IUDs and emergency contraception (like Plan B). Other nonprofits object to the full spectrum of contraceptives.

The organizations claim that the accommodation violates their religious beliefs, because submitting the EBSA 700 to insurers/third-party administrators (TPAs) makes them complicit in the use of the birth control, even though they're not paying for it. There are 51 active court cases challenging the accommodation on these grounds.

What did the Supreme Court decide about Wheaton College?

The Court issued an injunction, ruling that Wheaton College does not need to file the EBSA 700 against its objections while their court case is being resolved.

The injunction itself does not necessarily foreshadow that Wheaton College will be successful in their lawsuit; the six justices who signed on in favor are clear in their opinion that this is not a decision in favor of Wheaton's arguments.

But it does halt Wheaton College's obligation to submit the accommodation form until the courts resolve whether the accommodation does, in fact, infringe upon religious freedom. Similar injunctions have been granted to other religious nonprofits by lower courts.

The Supreme Court indicated that Wheaton's employees should still have access to contraceptives without co-pays in the interim. According to the opinion, Wheaton can submit a letter to the federal government documenting its objection to completing the EBSA 700, and the government can then coordinate with the institution's third-party administrator to assure coverage.

Why was Sotomayor's dissent so scathing?

Justice Sotomayor raises at least four objections to the injunction in her dissent.

  1. Sotomayor contends that the Wheaton injunction contradicts the decision issued in the Hobby Lobby case. The opinions written by Justices Alito and Kennedy — who both ruled in favor of Hobby Lobby — used the existence of the accommodation to justify their conclusion. In her dissent, Sotomayor worries that this apparent flip-flop will undermine public confidence in the Supreme Court.

    There is disagreement about whether the Wheaton injunction actually counters the Hobby Lobby ruling. The Hobby Lobby decision notes that the present accommodation imposes less on religious organizations than the actual contraceptive mandate, but it's possible that the government could arrange something that imposes even less still.
  2. The dissent argues that the injunction unravels months of government work required to craft the accommodation through usual regulatory processes, which will generate unnecessary costs and layers of bureaucracy.

    The Supreme Court, Sotomayor writes, has "no reason to think that the administrative scheme [Wheaton] foists on the government today is workable or effective on a national scale."
  3. Sotomayor is troubled by the authority the Court used to justify the injunction. In her dissent, she writes that these types of injunctions are only appropriate when "it is aid of our jurisdiction and the legal rights at the issue are indisputably clear."

    Sotomayor argues that the Wheaton injunction easily fails both of those requirements. The case is being decided by the District Court, not the Supreme Court, so this is not "in aid of their jurisdiction." Furthermore, lower courts have come to different conclusions about the legality of the accommodation, so the legal rights in question cannot be called "indisputably clear."
  4. Last, Sotomayor also makes the case that this decision could be a risk for those who use Wheaton's health plan, as their insurer only has a legal obligation to provide contraception when they receive the particular form that the injunction allows them not to file.

Why didn't the Hobby Lobby decision settle this issue?

In Hobby Lobby, the Supreme Court ruled that certain for-profit companies may refuse to cover forms of birth control that it finds morally objectionable.

That decision didn't have any immediate legal implications for nonprofits, who had the accommodation that the Obama administration offered in February 2012. The non-profits are challenging the accommodation itself as unworkable.

What problems could this introduce?

Here's the trouble with the recommendation in the injunction: the government may not have all of the information about the insurer or third-party administrator that it needs to coordinate birth control coverage.

This information may not be readily available without that form — and it's not clear whether the government could compel disclosure from the objecting organization.

This isn't a problem for Wheaton College itself, because the government can glean the necessary information from the lawsuit itself. Wheaton has already submitted a letter to the government certifying its objection. But if this new opt-out to the accommodation gets scaled up, it could create problems.

"Presumably once the government receives a certification from a nonprofit objecting to contraceptive coverage, it will need to contact the organization to ask who the organization uses for its insurer or TPA is, and then separately contact the insurer or TPA," writes Timothy Jost, a law professor at Washington and Lee University. "Whether the nonprofit is legally required to respond to the government inquiry is not clear."

And as long as the legal workability of the accommodation is uncertain, it's hard to see it as a firm solution for extending contraceptive coverage to employees at for-profit corporations like Hobby Lobby; extending the accommodation could trigger more lawsuits, resulting in more injunctions.

Moreover, the accommodation was the result of months of cooperative governmental effort, a process that considered more public comments than any regulation on record.

What's next?

The Supreme Court's injunction is specific to the Wheaton case, which is currently pending appeal. However, the injunction does establish a precedent that lower courts may observe when other religious nonprofits lodge similar objections to the contraceptive mandate accommodation.

Wheaton College v. Burwell is currently pending in front of a federal court of appeals. While the court cannot — and would not — presume to define the college's beliefs, it does have the authority to determine whether those beliefs are "substantially" burdened by the accommodation.

If Wheaton does win its case, the federal government may need to devise a new accommodation requiring less action from the religious organization, while accounting for the problems outlined above.