The three female justices of the Supreme Court sharply rebuked their colleagues Thursday for siding with a Christian college in the latest battle over providing women with contraceptive coverage under the Affordable Care Act, saying the court was retreating from assurances offered only days ago.
In a short, unsigned opinion, the court said that Wheaton College in Illinois, at least temporarily, does not have to comply even with compromise provisions in the law that the college says still violate its religious beliefs.
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.”
The strong language showed that the court’s decision Monday in Hobby Lobby was only the start of what will be a continuing battle over the requirement in Obamacare that employers provide female employees no-cost access to all birth control approved by the Food and Drug Administration.
After the Hobby Lobby decision, the court sent back for reconsideration by lower courts cases that involved companies whose owners say their religious beliefs do not allow them to offer any contraceptives.
And the Wheaton College case is one of dozens that object to a compromise the Obama administration has offered to religious organizations, hospitals and colleges.
Under this arrangement, the groups are required to fill out a form, EBSA Form 700, to register their religious objections. This enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The organizations do not have to pay for the coverage, and the cost is borne by the government or in other ways.
But some of the colleges and organizations say that signing the form authorizes the third parties to provide the contraceptive coverage, making them complicit in actions that offend their religious beliefs.
The ruling Thursday says Wheaton need only file a letter with the federal government stating the college’s religious objections. Presumably, the government then would notify the third party to provide the contraceptives.
“Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the order said.
Sotomayor disagreed. She said the injunction “risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.” And since the other cases around the country are indistinguishable, she said, the order might as well be national in scope.
It is not unusual for orders responding to an emergency request to be unsigned. Justice Antonin Scalia added one sentence saying he agreed with the result in the four-paragraph order, a sign he did not agree with its reasoning.
Justice Stephen G. Breyer, who dissented along with Ginsburg, Sotomayor and Kagan in the Hobby Lobby case, did not join their dissent to Thursday’s order.
Churches and other institutions whose mission is purely religious are exempt from the birth control requirement under the health-care law.
The college was turned down by a district court in asking for an injunction while it challenged the requirements. The U.S. Court of Appeals for the 7th Circuit also turned down the college this week, basing its decision in part on the Hobby Lobby decision.
In that decision, Justice Samuel A. Alito Jr. wrote for the court’s five conservatives, saying that the Religious Freedom Restoration Act protected two family-owned companies — the arts and crafts chain Hobby Lobby and a Pennsylvania cabinet-making firm called Conestoga Wood Specialties — from having to offer certain contraceptives under their employee health plans.
The owners of the companies said those contraceptives violated their religious beliefs.
In ruling for the companies, Alito and the majority noted the compromise that the administration gave religious nonprofit organizations and said extending it to objecting businesses might be a way to give female employees access to all methods of birth control without burdening the religious rights of the owners.
Although the opinion did not rule on the legality of this compromise, Alito wrote that the alternative “achieves all of the government’s aims while providing greater respect for religious liberty.”
On Thursday, Sotomayor essentially accused her colleagues of a bait-and-switch.
“After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the court now . . . retreats from that position,” she wrote.
The court’s order noted that lower courts were divided on the question of whether the form still imposed a burden on the religious organizations. The U.S. Court of Appeals for the 11th Circuit recently said it did.
The order also said it “should not be construed as an expression of the court’s views on the merits.”
The court had taken similar action in another case, involving a Colorado group called Little Sisters of the Poor. Sotomayor said the case was different, because the third-party administrator in that case was a church group not obligated to provide contraceptives.
Mark Rienzi, a Catholic University law professor representing Wheaton, said the court’s decision should not be surprising.
“The government is free to provide contraceptives to anyone it pleases — but it can’t force religious objectors to be part of the process,” he said. “The government should just give up its effort to use heavy IRS fines to force people to violate their faith.”
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.”