WASHINGTON — On July 3, four days after the U.S. Supreme Court ruled in favor of two for-profit employers who argued that the Department of Health and Human Services' contraceptive mandate violated their free-exercise rights, six justices approved a temporary injunction in another HHS lawsuit brought by Wheaton College, sparking applause and outrage.
“On the eve of Independence Day, we are grateful to God that the Supreme Court has made a wise decision in protecting our religious liberty — at least until we have an opportunity to make our full case in court,” Philip Ryken, president of Wheaton College, said in a statement.
But partisan groups opposed to exemptions for religious employers took their cue from the high court’s three female justices, who issued a stinging rebuke to the six justices who supported the ruling.
“The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” stated Justice Sonia Sotomayor, who contended that the Wheaton ruling contradicted elements of the majority opinion in Hobby Lobby and undermined the court’s credibility.
Wheaton College, a private Christian institution of 3,000 students located 35 miles outside of Chicago, whose alumni include Protestant evangelizer Billy Graham, is not the first religious nonprofit to obtain emergency relief from the high court. But the brief, unsigned 6-3 ruling stirred controversy, in part, because it appeared to signal support for the legal arguments of many religious plaintiffs who oppose the White House’s plan for addressing their free-exercise concerns regarding the mandate.
Good News for Religious Nonprofits
Written by Justice Samuel Alito Jr., the Wheaton ruling granted injunctive relief and directed the evangelical college to inform “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.”
While the ruling made clear that its language “should not be construed as an expression of the court’s views on the merits,” at least for the present, it appeared to side with many religious nonprofits, which oppose the White House accommodation that requires them to sign EBSA Form 700, thus directing their insurance providers to pick up financial and administrative responsibility for coverage of the mandated services.
The U.S. bishops and many objecting religious employers, including Wheaton College, contend that their signatures on Form 700 trigger coverage of the mandate and thus make them complicit in the provision of immoral services.
The court majority appeared to sympathize with that position.
“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,” stated the ruling, which insisted that the injunction did not prevent Wheaton’s female employees from benefiting from the mandated services — though an alternative mechanism was endorsed.
Gerard Bradley, a professor of law at the University of Notre Dame Law School, told the Register that the ruling was good news for religious plaintiffs who oppose the White House accommodation.
“The Wheaton opinion supports the hope that the court will provide religious nonprofits an alternative to filing Form 700 to which so many have objected,” said Bradley.
“In fact, this opinion (read in light of Hobby Lobby) makes it quite likely that, when the Supreme Court takes up the case of a religious nonprofit which purchases an insurance policy on the market, the court will do what it did in Wheaton (and the Little Sisters of the Poor), namely, allow them to send a letter to the secretary of HHS in lieu of filing Form 700.”
Needless Level of Complexity
In her dissent, Sotomayor countered that the Wheaton ruling introduced a needless level of complexity to the provision of services.
“The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense,” she stated.
Further, Sotomayor contended that the ruling appeared to contradict the majority opinion in Hobby Lobby. In her view, the June 30 decision in favor of the closely held family company endorsed the White House accommodation.
But that judgment is hotly debated by legal scholars. Some contend that the majority opinion in Hobby Lobby did not hold up the accommodation as a preferred solution, but merely noted it to show that the administration had not chosen the least restrictive means of advancing its goal of expanding access to contraception.
The counsel for Hobby Lobby argued that the federal law violated the company's free-exercise rights under the Religious Freedom Restoration Act (RFRA), and the majority opinion agreed with the craft-store chain’s position. RFRA states that the government must not “substantially burden” religious freedom without a “compelling” state interest. When that threshold has been met, it must use the least restrictive means of securing its interest.
“Justice Sotomayor’s dissent miscomprehends the court’s reasoning in Hobby Lobby,” argued Jonathan Adler, a top constitutional scholar at Case Western University School of Law, in a July 6 essay in The Washington Post, emphasizing that the majority opinion cited the accommodation to prove that the government could have offered the college the same way to opt out, and nothing more.
Other Potential Options
“Finding that Option B is ‘less restrictive’ than Option A suffices to demonstrate that Option A is not the least restrictive option, but tells us nothing about whether there exists yet another option — Option C, D or E — that might be even less restrictive still,” he added.
Adler said the Hobby Lobby decision did not settle the question of whether the high court will uphold the White House accommodation when it takes up legal challenges to the HHS mandate brought by religious nonprofits.
Douglas Laycock, a leading authority on religious-freedom issues at the University of Virginia School of Law, said the Wheaton ruling “gives hope” to religious plaintiffs, but he cautioned that the high court might ultimately endorse an opt-out solution that will not satisfy religious nonprofits.
“The nonprofits may eventually get a final judgment tinkering with the wording of the form. I still do not expect them to get relief that makes it unnecessary for their insurers or claims administrators to provide contraception,” Laycock told the Register.
Unanswered Legal Questions
Notre Dame’s Bradley also noted that the Wheaton ruling leaves some urgent legal questions unanswered.
“The prospects for religious nonprofits (such as Notre Dame and EWTN) which self-insure are murkier. The reason why these cases are much harder to predict has to do with the operation of the federal law imposing the contraception mandate as it specifically affects self-insured entities,” said Bradley.
“So the best we can say at this point is, I think, that Wheaton and Hobby Lobby support guarded hope for these self-insured institutions but that the Supreme Court has yet to take the full measure of the nonprofit cases.”
Legal authorities predict the high court will likely take up one or more legal challenges to the HHS mandate filed by religious nonprofits by next year, with a decision by June 2015.
Meanwhile, the Hobby Lobby ruling has stirred partisan attacks on the high court and objecting employers, and some insurance carriers have begun to complain that the White House accommodation, which requires third-party administrators to take responsibility for coverage of the mandated services, has proved unworkable.
“It’s a complex solution that hasn’t worked in the real world, said the third-party administrators, or TPAs, providing the birth-control benefit, because the government hasn’t figured out how to pay them back,” reported Bloomberg News in a July 2 article.
“Without a solution, the benefits administrators may ultimately choose to drop clients with religious objections to covering birth control,” according to a source cited in the Bloomberg story. “Nonprofits and businesses with religious owners that refuse to cover the benefit would have to change the way they provide health benefits as a result, adding to disruptions from the health-care law.”
Writing for the majority in the Hobby Lobby decision, Alito noted that the government was already projected to spend more than $1 trillion funding provisions of the Affordable Care Act over the next decade, and, by comparison, the cost of underwriting the HHS mandate — when employers are exempted — would be relatively minor. The White House is now reviewing plans for funding the mandated services so Hobby Lobby and Conestoga employees can receive them.
However, the practical hurdles of providing such coverage, especially when employers self-insure, will emerge as a critical issue and could stir public anger, with unpredictable results, for the 2014 midterm election.
In the wake of the Hobby Lobby ruling, Democrat lawmakers in Congress began working on bills that would modify the Religious Freedom Restoration Act, with the goal of reversing the court’s decision. Reportedly, the bills will be introduced before the August recess, timed to stir the outrage of female voters.
“Last week’s decision reignited a conversation across the country reminding women once again that their access to health care has become a political issue, when it should be a basic right,” Marcy Stech, national press secretary for Emily’s List, a political action group that backs candidates who support abortion rights, told The Hill.
“It will drive women to the polls this November to vote for the women candidates who are on the right side of women’s access to basic health care.”
In the coming months, as the "war on women" rhetoric heats up again, it will be up to religious believers and their allies on Capitol Hill to explain why robust free-exercise protections are good for America.
In a July 5 column in The New York Times, Ross Douthat observed that "the goals of post-sexual revolution liberalism are at odds with the official beliefs of almost every traditional religious body. ... If liberals so desire, this division could lead to constant conflict, in which just about every project conservative believers undertake is gradually threatened with regulation enforcing liberal norms."
Instead, he called for "a rediscovery of pluralism’s virtues and the benefits of allowing different understandings of social justice to be pursued simultaneously, rather than pitted against each other in a battle to the death."
Joan Frawley Desmond is the Register’s senior editor.