Fireworks at Supreme Court over emergency injunction applied against “accommodation”

posted at 9:02 am on July 4, 2014 by Ed Morrissey

After the Hobby Lobby decision, a number of people pointed to a reference to the so-called “accommodation” for religious-oriented organizations in the HHS contraception mandate to conclude that the Supreme Court’s decision would be limited to the for-profit sector, and only to certain methods of contraception. A series of orders the next day showed the latter was not true, and a decision late yesterday suggests the former isn’t, either. An emergency injunction on behalf of Wheaton College sparked the ire of three Supreme Court justices, who issued an angry dissent to the unsigned order that temporarily sets aside the “accommodation”:

Today, the Supreme Court granted Wheaton College an injunction pending appeal against enforcement of the contraception mandate, even though Wheaton was eligible for the accommodation HHS has provided for religious non-profits.  Specifically the Court ordered:

If the applicant informs 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 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.

This prompted three of the four dissenters in Hobby Lobby to issue a statement scolding the rest of the court for ignoring what they claim had been decided on Monday:

Justice Sonia Sotomayor said the action cast doubt on the very accommodation the court’s majority seemed to endorse Monday in Burwell v. Hobby Lobby, which concerned businesses that objected to providing birth control that offends the owners’ beliefs.

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

She said Thursday’s order “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”

First, the issuance of a temporary injunction is not a decision, as Sotomayor well knows. Sotomayor herself issued a temporary injunction to stop enforcement of the mandate on the Little Sisters of the Poor, which caused an eruption of hysteria and Know-Nothing anti-Catholic bigotry at the beginning of the year — a foreshadowing of what we saw this week, actually. A stay is just a pause that allows the courts to consider the issue at hand before enforcement does serious damage to the plaintiff, based on a reasonably good chance for the petitioner to win the case but not a decision on the merits. The court signaled that they want a closer look at the accommodation, not yet that it’s not acceptable.

But didn’t they already rule on the accommodation in Hobby Lobby? Not yet, as I warned earlier this week. Justice Samuel Alito’s opinion does cite the accommodation, but never directly finds that it satisfies the RFRA. He mentions it to demonstrate an entirely different point — that the government didn’t offer to Hobby Lobby what it did to other organizations and which HHS claims as satisfactory to relieve the burden on religious expression, which means that even by the government’s own standard they did not use the least burdensome method to satisfy what they consider a compelling state interest:

Actually, the Hobby Lobby decision never even concedes that a contraception mandate is a compelling state interest. The “narrowly decided” part of Hobby Lobby is that the regulation failed on a very basic, entry-level issue. The rest of these issues are still open for debate at the Supreme Court, and the injunction yesterday shows that the justices aren’t done with the mandate yet.

That brings us to another objection from Sotomayor that is rather stunning. Sotomayor claims that the sincerity of religious beliefs and the burden to them by regulation is immaterial in determining the validity of their claim of injury to free religious expression:

Sotomayor said she was not calling into question the college’s sincerity.

“I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she wrote. “But thinking one’s religious beliefs are substantially burdened — no matter how sincere or genuine that belief may be — does not make it so.”

That’s almost entirely wrong. Under the RFRA and previous precedent, the sincerity of religious belief and the burden on such by regulation is a determining factor. Religious expression should only be “substantially burdened,” the RFRA states, “in furtherance of a compelling governmental interest,” and then only by “the least restrictive means of furthering that compelling governmental interest.” Alito’s decision in Hobby Lobby points out that “Congress was confident of the ability of the federal courts to weed out insincere claims,” not that sincerity was of no matter. Since Sotomayor concedes that Wheaton College’s objection is sincere, then the RFRA tests apply, because the Supreme Court already found that the mandate “substantially burdened” religious expression in Hobby Lobby.

Does the HHS contraception mandate “accommodation” pass those tests? Not even close, as I argued yesterday at The Fiscal Times:

Contraception in almost all of its forms is inexpensive and widely available. Furthermore, although HHS considers contraception preventive medicine, it doesn’t prevent disease or block the spread of contagion, unless one considers babies a plague.

Besides, there is no crisis in accessing contraception. As noted above, the CDC’s 26-year study of unplanned pregnancies (1982-2008) shows that 99 percent of all sexually active women seeking to avoid pregnancy accessed contraception. Access to contraception is such a non-issue that the word “access” only appears once in the entire report, and that in a footnote about access to health insurance. So despite all of the shouts of doom, nothing in this decision impacts the already-universal access to contraception Americans have had for the last four decades.

Furthermore, even if this were some kind of contraception-access crisis in the US, HHS chose the most burdensome method of addressing it. The federal government already subsidizes contraception for low-income Americans through Title X; the Obama administration or Congress could have expanded that program. They could have reclassified birth-control pills as over-the-counter rather than requiring a prescription, as Bobby Jindal and other Republicans have proposed.

Instead of trying those intermediate remedies, HHS instead forced employers and their insurers to provide contraception for free regardless of their religious beliefs, while at the same time arguing hypocritically that any resistance to that idea was tantamount to interfering in a private transaction between a woman and her doctor.

This injunction isn’t a “bait and switch,” as Sotomayor et al alleged yesterday. It just showed how weak the HHS case against Hobby Lobby actually was, and how badly HHS bungled this from beginning to end. Don’t expect the accommodation to survive, although it might just morph into a refusal letter to HHS, as Lyle Denniston predicts. That will turn this regulation into an unenforceable mess, which is exactly what critics claimed it was from the beginning.


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‘Cuz, like, um, ya know, I can’t hold my own in a debate about the Crusades, the English Reformation, the Inquisition, Progressivism’s roots in 17th century German and then North Eastern America’s Pietism Movement, the pogroms under Russian czars (then the Communists), the disinformation campaign about Pope Pius XII instigated by the Kremlin, Rolf Hochhuth’s blood libel in Der Stellvertreter. Ein christliches Trauerspiel, etc, even though my Jewish father’s aunt and children died in a Nazi concentration camp (and, no, Naziism was NOT based upon Christianity – Hitler, Goebbels, Rosenberg, and other Nazi leaders LOATHED the religion – and I have that ammunition at my fingertips should you mistakenly wish to embark down that path of argument) or something.

Resist We Much on July 4, 2014 at 5:12 PM

rotf

Axe on July 4, 2014 at 5:26 PM

As opposed to the vast majority of religions. Really Islam is about the only faith with as much carnage to it’s name as christianity.

Tlaloc on July 4, 2014 at 4:55 PM

The word “Christianity” is capitalized.

Axe on July 4, 2014 at 5:27 PM

Tlaloc on July 4, 2014 at 4:27 PM

Republican PACs are running anti-Obamacare spots non-stop.

sentinelrules on July 4, 2014 at 5:28 PM

You don’t know much about the history of christianity if, as both a heretic and a woman, you trust them not to abuse you.

Tlaloc on July 4, 2014 at 4:48 PM

.
I’m 36 years old and have yet have a Christian abuse me on religious reasons.

Resist We Much on July 4, 2014 at 5:12 PM

.
You haven’t ? ! ! !
.
You need to get on the band wagon, girl … you don’t know what you’re missing, if you haven’t been abused by a Christian, yet.

I’m sure there’s lots of Christians here at this blog who would be happy to participate in presenting this experience to you.
In fact, if I asked for volunteers, there’d be a stampede of us eager to help you with this experience, ’cause we don’t want you ‘lacking’ any knowledge of this issue, and there’s nothing better than “first-hand experience” … right Tlaloc ?

listens2glenn on July 4, 2014 at 5:30 PM

Sotomayor is the dumbest of the three banshees. There’s no question about that.

DisneyFan on July 4, 2014 at 4:57 PM

Kind of makes you sad to think of who we could be, only to be forced to turn around face who we are.

It’s why I quit using “we.” I’m better than that. I don’t care how generally lousy I am — I’m better than that anyway.

Axe on July 4, 2014 at 5:30 PM

Resist We Much on July 4, 2014 at 5:12 PM

Tlaloc needs to think before he thinks.

nobar on July 4, 2014 at 5:33 PM

Tlaloc needs to think before he thinks.

nobar on July 4, 2014 at 5:33 PM

I’m not sure it can. Too many liberals have become nothing more that propaganda platforms. Most have no idea what they’re saying.

darwin on July 4, 2014 at 5:38 PM

Look with a very few exceptions* don’t trust individual polls, trust poll aggregates. Individual polls can be very wrong, but aggregations are almost always spot on.
 
*the exceptions are the huge polls like the Kaiser health poll or the City University of New York poll on religion, polls that are professionally conducted and have 10x the sample size of your typical political poll.
 
Tlaloc on July 4, 2014 at 3:41 PM

 
Best post of the thread. I’m always shocked at how bad you are at this, but I know you, just like LFOD, verbaluce, cam2, and all the others, just say whatever you think will help you at that one single tiny moment.
 
Let’s jump in the Wayback Machine and go back a couple of weeks.
 

Or do you have new previously-uninsured numbers besides their 5 million?

rogerb on June 26, 2014 at 8:28 PM

Sure, there was this:

http://kaiserfamilyfoundation.files.wordpress.com/2014/06/survey-of-non-group-health-insurance-enrollees-findings-final1.pdf

But since you ignore every bit of data that refutes you I have no intention of wasting my time listening to your “Nyuhuh!”r routine again.

Tlaloc on June 26, 2014 at 8:32 PM

…nearly six in ten (57 percent) of those with Exchange coverage were uninsured prior to purchasing their current plan. ..
 
Among those who were previously uninsured and enrolled in a Marketplace plan, most say the reason they previously lacked coverage was because they couldn’t afford it or had no access to employer-sponsored insurance. Most of this group had been uninsured for a long time – seven in ten (71 percent) say that before buying their current plan they had been uninsured for two years or more

 
http://kaiserfamilyfoundation.files.wordpress.com/2014/06/survey-of-non-group-health-insurance-enrollees-findings-final1.pdf

 
71% of 57% of 8 million enrollees?
 
3.24 million previously uninsured.
 
Add that to Politifact’s best-case Medicaid number of 2.36M, and you get 5.6 million.
 
Obamacare only covered 5 million 5.6 million previously uninsured people.
 
Thanks again for the link and your personal confirmation that the Kaiser data is accurate, Tlaloc. That’s hilarious.

rogerb on July 4, 2014 at 5:57 PM

There’s no evidence of premiums shooting up.

Tlaloc on July 4, 2014 at 3:57 PM

PULL your head out of your ass.

Health plans request double-digit premium increases

You’re a water carrier. No pride. No character.

CW on July 4, 2014 at 6:16 PM

TILICAC,,,,,,, Maybe the Liberals dominate the sciences but the leftists do not. There is a big difference in those groups. By your conversation it seems that you fit into the Leftist one with no freedom or liberty for anyone. Obama didn’t say anything about those Christians in the ME until those girls were kidnapped. He is not of the Christian faith. Check his fruit out.

garydt on July 4, 2014 at 6:19 PM

Seriously – can we get smarter lib trolls? Or is that an oxymoron?

Midas on July 4, 2014 at 6:21 PM

I guess if they were smarter they’d be… well, not liberals.

Midas on July 4, 2014 at 6:21 PM

Seriously – can we get smarter lib trolls? Or is that an oxymoron?

Midas on July 4, 2014 at 6:21 PM

lol

Watch the MO of these particular trolls-it’s almost like they’re working off of a script. =)

non-nonpartisan on July 4, 2014 at 6:23 PM

As bad as Kennedy’s & Breyer’s nonsense (the other two of the five liberals, sometimes now sadly including Chief Roberts) is, Sotomayor’s delusions shared with her sisterhood are of a vastly more inherently corrupt order, making it virtually impossible for her to say anything about anything related to abortion without engaging in mendacity, or to be simple, she’s a vile, lawless, fascist bigot who’d never have a responsible position in a civilized country; no worries for her in that regard here.

russedav on July 4, 2014 at 6:24 PM

Taliac,,,,,,,,,,, As for Obama Care I paid nothing for premiums a month,, now I pay over 600 a month and everyone I know has the same problem,, yes everyone or nearly everyone hates this thing. With the King controlling the media is one reason why we don’t hear these stories.

garydt on July 4, 2014 at 6:25 PM

Taliac,,,,,,,,,,, As for Obama Care I paid nothing for premiums a month,, now I pay over 600 a month and everyone I know has the same problem,, yes everyone or nearly everyone hates this thing. With the King controlling the media is one reason why we don’t hear these stories.

garydt on July 4, 2014 at 6:25 PM

You don’t think Tlaloc will listen to you, do you? Why should he(?), in his mind-you are a selfish, lying racist.

non-nonpartisan on July 4, 2014 at 6:31 PM

Non-partisan, I had asked him several questions but he could only get around answering one. I don’t know why these leftists can’t answer easy questions but again I think he can’t understand the real Truth of things.

garydt on July 4, 2014 at 6:52 PM

Seriously – can we get smarter lib trolls? Or is that an oxymoron?
 
Midas on July 4, 2014 at 6:21 PM

 
They are the smart liberals.

rogerb on July 4, 2014 at 7:32 PM

Non-partisan, I had asked him several questions but he could only get around answering one. I don’t know why these leftists can’t answer easy questions but again I think he can’t understand the real Truth of things.

garydt on July 4, 2014 at 6:52 PM

You are correct about illberals’ relationship to reality. They don’t care about it.

Their fantasies mean more to them than truth, and that’s why they avoid questions which are disruptive to their delusions. People like us are nuisances to them.

non-nonpartisan on July 4, 2014 at 7:46 PM

For a “wise Latina”, she is pretty damn stupid. Just one more Obama legacy.

captnjoe on July 4, 2014 at 7:49 PM

People like us are nuisances to them.
 
non-nonpartisan on July 4, 2014 at 7:46 PM

 
Well said.

rogerb on July 4, 2014 at 7:52 PM

unless one considers babies a plague.

The left does exactly that. Babies and the adult humans they grow into are a plague in their eyes.

Viator on July 4, 2014 at 9:41 PM

Resist We Much on July 4, 2014 at 5:12 PM

For the thread win! For all your weapons of mass destruction logic bombs please call on Resist We Much.

Gebirgsjager on July 4, 2014 at 11:31 PM

Obama did a great job in planting his radical, leftist soldiers in every branch of government . . . we may never get all of them out.

rplat on July 5, 2014 at 7:37 AM

You don’t know much about the history of christianity Christianity if, as both a heretic and a woman, you trust them not to abuse you.

Tlaloc on July 4, 2014 at 4:48 PM

.
On one side, we have a community of Old Order Mennonites, and Amish…

On the other side, we have ( aw, gee … I dunno ) … Egypt? Saudi Arabia? Jordan? Yemen? Turkey? Syria? … any country whose name ends with “-istan” ?
.

OTOH, I can no longer visit places like Tower Hamlets because of Shari’ah Law Zones when I return home. It’s too dangerous and I can easily be abused (oh, and not just by the so-called ‘brown-skinned’ Muslims, but the converted zealots, who are as white as I am).

Resist We Much on July 4, 2014 at 5:12 PM

.
I ‘Dogpiled’ (don’t like Google) Tower Hamlets, came up with some interesting stuff :
.
“Muslim patrols” target drinkers and gays in London
.
Metropolitan Police enforcing Tower Hamlets ‘Shariah Zone’
.
Sharia Contolled Zone Enforced Protected by British Police – Arrests British Citizens
.
Islamic extremism concerns at Tower Hamlets school
.
European ‘No-Go’ Zones for Non-Muslims Proliferating “Occupation Without Tanks or Soldiers”

listens2glenn on July 5, 2014 at 2:15 PM

Uh oh … got “mod-qued”

listens2glenn on July 5, 2014 at 2:16 PM

Oh, and by the way, I’m an atheist, libertarian and a woman…soooo just STFU before you even start. If I had to choose between having you or an entire sect of Christians living next door, you’d lose. At least I would know they wouldn’t be stealing my shit because they felt that they were ‘entitled’ to it…because racism, sexism, bigotry, genocide, Islamophobia, anti-Semitism (and trust me, you don’t even want to go there, buddy), ‘micro-aggressive’ behaviour, white ‘privilege,’ and/or ‘inequality.’

Resist We Much on July 4, 2014 at 4:46 PM
.

You don’t know much about the history of christianity Christianity if, as both a heretic and a woman, you trust them not to abuse you.

Tlaloc on July 4, 2014 at 4:48 PM

.
On one side, we have a community of Old Order Mennonites, and Amish…

On the other side, we have ( aw, gee … I dunno ) … Egypt? Saudi Arabia? Jordan? Yemen? Turkey? Syria? … any country whose name ends with “-istan” ?

listens2glenn on July 5, 2014 at 2:15 PM

.
C’mon Tlaloc ! . . . . .

If you had to pick between those two options, with whom would you trust with the safety of your ‘women folk’ (or yourself, if you’re a female) ?
.
If they were limited to these two options, I’d bet dollars to stale donuts that women born and raised in the middle east would choose our Old Order Mennonites and/or the Amish.

listens2glenn on July 5, 2014 at 6:32 PM

People like us are nuisances to them.

non-nonpartisan on July 4, 2014 at 7:46 PM

No, we are the evil hated enemy.

Here’s a good read that explains why. Who would have known that they’re just not as mentally and emotionally “evolved” as us conservatives!

dominigan on July 7, 2014 at 11:39 AM

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