Fireworks at Supreme Court over emergency injunction applied against "accommodation"

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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