Obamacare’s supporters fear the Supreme Court’s actions since the Hobby Lobby decision suggest the Court will further crumble the law’s cracked contraception mandate.
Before leaving for the summer, the justices dealt with a handful of procedural questions in other, non-Hobby Lobby lawsuits regarding the mandate that have been filed by religious nonprofits. Those actions include granting a temporary injunction that allows Wheaton College to — at least temporarily — sidestep a version of the mandate aimed at quasi-religious employers.
That move has friends of the Affordable Care Act nervous. Post-Hobby Lobby, the next challenge to mandatory birth-control coverage will almost certainly come from religious nonprofits like Wheaton. And if the justices are willing to grant the college an injunction, the mandate’s supporters fear that, when the cases come before them in the future, they’ll grant exemptions even beyond the scope of Hobby Lobby.
That’s no small matter: More than 50 lawsuits seeking further exemptions to the mandate are already working their way through the legal system, and some are near certain to end up before the Supreme Court.
Here’s a guide to understanding what the Supreme Court has done since the Hobby Lobby decision, and what it means for the ongoing battle over the law’s contraception mandate.
What has the Court done since Hobby Lobby?
Last week, the Supreme Court granted a temporary injunction to Wheaton College, saying it doesn’t have to fill out a form that would qualify it for an “accommodation” to the contraception mandate. The accommodation was designed to give quasi-religious employers like Wheaton a way to avoid providing or paying for birth control directly, while still ensuring that their employees get access to the benefits the Affordable Care Act intended.
Earlier — the day after the Hobby Lobby ruling, in fact — the Supreme Court ordered lower courts to hold new hearings in three cases brought by religious nonprofits. The high court said those cases should be reheard in light of the Hobby Lobby ruling.
But those aren’t final rulings, right? Why are people so worked up over these orders?
Hobby Lobby was about the contraception mandate and closely held for-profit companies. It didn’t directly speak to religious nonprofits, which are eligible for an accommodation from the mandate. But the Court referenced that accommodation a lot in its Hobby Lobby ruling, saying the accommodation met the same goals as the contraception mandate but with fewer implications for employers’ religious freedom.
Many liberals took that as a sign that the accommodation would survive its legal challenges. After all, why would the Court make such a big deal about a perfectly workable alternative, only to turn around a year or two later and say that alternative is also illegal? But in light of the Wheaton College order, they’re not so sure.
“I think it’s a pretty big sign that they’re going to find that it’s not an acceptable alternative,” said Timothy Jost, a law professor at Washington and Lee University.
Wheaton, a Christian school, objects to much more than Hobby Lobby did. It’s eligible for the accommodation that Hobby Lobby wasn’t, which allows employers to claim a religious objection and then turn all of their contraceptive coverage over to their insurance company. Wheaton says even that middle ground is a violation of its religious liberty. Signing the form to claim a religious exemption means that the college is complicit in making contraception available, albeit from someone else, and so it objects to filling out the form.
By saying that the college doesn’t have to fill out the form, the Supreme Court cast doubts on the very accommodation it was highlighting just a few days earlier — at least according to some legal experts, including Justice Sonia Sotomayor, who dissented from the Wheaton ruling.
“After expressly relying on the religious-nonprofit accommodation “¦ the court now, as the dissent in Hobby Lobby feared it might, retreats from that position,” Sotomayor wrote.
So is this a done deal? The accommodation is going to get the ax for sure?
Not at all. An injunction isn’t a ruling on the merits, and the Court explicitly said in its order that it wasn’t making a final decision on the accommodation’s legality.
Not everyone sees a conflict between the Wheaton order and the Hobby Lobby decision, in part because in its case Hobby Lobby didn’t actually take a position on the accommodation — and made a point not to. It said the accommodation was less of a burden on religious freedom than the mandate, but not necessarily that it was a small enough burden.
And some legal experts, even on the left, aren’t worried about the injunction order.
“It is reasonable for the Supreme Court to give them a chance to fully litigate their lawsuit before they are required to take the action that they object to. That does not mean that they should ultimately win their case — or that they are likely to win their case when the time comes,” wrote Ian Millhiser, a legal analyst at the Center for American Progress.
There’s also some speculation that Justice Stephen Breyer, one of the Court’s traditionally liberal members, joined with the majority on the Wheaton College injunction as a political maneuver to keep the government’s options open, limiting the controversy to a specific form rather than widening it to the overall requirement to provide some notification of a religious objection.
So, the accommodation for nonprofits may well survive in the end. The Court’s post-Hobby Lobby orders are signals, not final decisions. The cause for concern on the left is that, however safe the accommodation seemed from reading the Hobby Lobby ruling, its safety is less assured now.
“Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote in a dissent from the Wheaton order. “Not today.”
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