More Good News from Supreme Court for Religious Nonprofits on HHS Mandate

When the high court provided an emergency reprieve to Wheaton College on July 3, the decision prompted an angry dissent from the three female justices, but also offered hope to religious plaintiffs in HHS cases.

Justice Sotomayor issued an angry dissent to the high court's July 3 ruling, which granted a temporary injunction to Wheaton College, one of many religious nonprofits that have filed legal challenges to the HHS contraceptive mandate. It is just possible that the justice's anger offers some hope that the high court is prepared to broker a solution that all the HHS religious plaintiffs can live with.

To provide some needed context, we must return, for a moment, to the U.S. Supreme Court's  more critical June 30 decision, which found that that the HHS contraceptive mandate violated the religious freedom of Hobby Lobby and Conestoga Wood. After the Court issued its ruling for  Hobby Lobby, legal experts began debating whether the decision offered good news for Catholic charities, hospitals and universities that also argued that the federal law violated their free exercise rights.

The majority opinion, written by Justice Samuel Alito, Jr., had referenced the "accommodation," which the White House had previously offered as a solution for religious employers. The U.S. bishops had rejected the accommodation as "unacceptable," and the lower courts were divided on whether the White House plan passed muster with statutory protections for free exercise rights. Scrutinizing the majority opinion,  legal experts weren't sure whether Alito was now endorsing the accommodation or simply referencing it as an example of the government's attempt to address religious freedom issues posed by the mandate.

That question remains a critical issue for religious nonprofits, who oppose the accommodation and want a better solution that will shield them from crippling fines if they fail to comply with the federal law.

Now, there is some hope that the majority of justices may be prepared to support a different and better solution that already has the backing of religious nonprofits. That was the takawsay from yesterday's ruling, which gave Wheaton College emergency relief,  and directed the Evangelical college to write a letter to inform

the Secretary of Health and Human Services in writing that it is a non- profit organization that holds itself out as religious and has religious objections to providing coverage for contra- ceptive services, the respondents are enjoined from enforc- ing 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 Gov- ernment, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators. 

 In previous legal briefs, religious nonprofits have argued that signing such a letter would be acceptable, because it formally communicates the employer's objections, and does nothing more -- unlike to the White House accommodation.  

The White House accommodation says that objecting religious employers could sign Form 700, which confirms their opposition to the HHS mandate on religious grounds and directs their health insurance company or a third party administrator to take responsibility for covering the services, suposedly without any reimbursement from the objecting employers. The White House says the insurance company, not the objecting religious employers would be responsible for underwriting the coverage of co-pay free services.

But the U.S. bishops have argued that if religious employers signed the accommodation form, which triggers insurance coverage, they would be complicit in the provision of immmoral services. The bishops also argued that the Form 700 was just an accounting gimmick, with religious employers still left holding the tab. 

However, it appears that while six justices were prepared to allow Wheaton College to forego the Form 700,  such guidance  did not sit well with the three female justices, who strongly dissented from the majority opinion. Reports The New York Times:

The court’s order was brief, provisional and unsigned, but it drew a furious reaction from the three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. The order, Justice Sotomayor wrote, was at odds with the 5-to-4 decision on Monday inBurwell v. Hobby Lobby Stores, which involved for-profit corporations.

Apparently, though Sotomayor dissented from the majority opinino in the Hobby Lobby ruling, she  had interpreted Alito's reference to the accommodation as an endorsement -- and thus a win for the White House when it returned to the high court next year to argue the merits of its solution for religious employers who opposed the mandate. But what if Alito, and the four other justices who ruled in favor of Hobby Lobby intended no such thing? For now, at least, it seems possible that they are willing to accept a solution to the impasse that works for the religious plaintiffs--not the White House.

The Times concluded:

Monday’s decision and the order on Thursday were dual blows to the Obama administration’s efforts to provide contraception coverage, said Walter Dellinger, who was acting United States solicitor general in the Clinton administration.

Justice Sotomayor said the ruling reached beyond Wheaton and could lead to similar results at many other nonprofit religious organizations that have similar concerns. “The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” she said.

Mark L. Rienzi, a lawyer at the Becket Fund for Religious Liberty, which represents Wheaton, said, “The court rightly recognized that Wheaton’s religious community should be allowed to practice its faith free from crushing government fines.”

Again, yesterday's ruling is not the final word, but it is promising for Catholic nonprofits looking to the Court to protect their free exercise rights.  I'd say it is a great way to close the Fortnight for Freedom and celebrate the 4th of July!. Stay tuned.