Two Reasons It’s Too Soon To Panic Over The Supreme Court’s Latest Birth Control Order

CREDIT: ThinkProgress

An odd Supreme Court order, handed down just four days after the Court’s bombshell opinion in Burwell v. Hobby Lobby raises serious concerns that Hobby Lobby could be even worse for women seeking birth control that was originally apparent. Yet, while these concerns are very real — real enough that all three of the Court’s women joined a blistering dissent by Justice Sonia Sotomayor criticizing the Court’s order — it is too soon to conclude with certainty that the Court will follow Thursday’s order in a case known as Wheaton College v. Burwell with the expansion of Hobby Lobby Sotomayor warns about in her dissent. The Wheaton College order should unnerve anyone who believes that a woman’s reproductive health is none of her boss’s business. But it is also far from the Court’s final word on this matter.

To explain, Hobby Lobby is more than just a restriction on women’s access to birth control — Hobby Lobby held that businesses owned by individuals with religious objections to contraception can ignore a federal rule requiring most employer health plans to cover birth control — it also drastically reworked a longstanding balance between protecting religious liberty and maintaining the rule of law. Before Hobby Lobby, the Supreme Court recognized that “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.” After Hobby Lobby, business owners gained the right to use their own religious beliefs as a sword to trim away the rights of others.

Yet the Hobby Lobby opinion also appeared to offer a silver lining to the women who stand to lose access to contraceptive coverage thanks to the Court’s decision in that case. Though the Court held that the Obama Administration’s existing birth control rules could not be sustained, it strongly hinted that the federal government could use an alternative method to guarantee contraceptive coverage to these women. Referring to an accommodation the administration offered to non-profits, which provides for health insurers to cover religious non-profit employees’ birth control if the employer objects to doing so, Justice Samuel Alito’s majority opinion in Hobby Lobby says that this accommodation “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.”

It took just four days before the Court appeared to back away from this statement, however. On Thursday, the Court handed down a brief order granting temporary relief to Wheaton College, a religious school that “categorically opposes the provision of contraceptive services.” Wheaton argued that it should not be required to submit the form it must fill out in order to exempt itself from the requirement to provide birth control coverage to its students and employees because submitting this form would make it “complicit in the provision of contraceptive coverage.” The form is the mechanism the government uses to identify which non-profits object to covering birth control, it also ensures that the insurer who will provide backup contraceptive coverage is notified of their obligation to do so.

The Court’s Thursday order in the Wheaton College case said that Wheaton may be exempted, at least temporarily, from having to submit this form so long as it “informs the Secretary of Health and Human Services in writing” that it intends to do so (although the Court also maintained that the government may “rely[] on this notice . . . to facilitate the provision of full contraceptive coverage under the Act.”)

On its surface, this order is hard to square with Justice Alito’s suggestion in Hobby Lobby that this entire process — a non-profit who objects to birth control submits a form, and then an insurance company provides their employees with contraceptive coverage — “does not impinge on [a party’s] religious belief that providing insurance coverage for the contraceptives at issue here violates their religion.” Which explains why Sotomayor responded to the Court’s Wheaton College order with such a forceful dissent. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”

There are two reasons, however, to suspect that the Court may ultimately reach a different result if it considers the issue presented by the Wheaton College case in a full merits hearing — rather than in the abbreviated process that led to this temporary order. As Sotomayor explains in her dissent, the order handed down by the Court on Thursday ignores the legal standard that is supposed to apply when a party seeks the kind of temporary relief the Court gave to Wheaton. Such relief is typically only available when “the legal rights at issue are indisputably clear.” Justice Alito’s opinion in Hobby Lobby on its own provides a great deal of doubt that Wheaton should win its case — so it is a huge stretch to say that Wheaton’s case is “indisputably clear.”

Yet, while Sotomayor is correct that the Court is not supposed to grant relief when the case for doing so is not exceedingly strong, that doesn’t mean it hasn’t done so anyway in the past. Indeed, a very recent precedent for such relief occurred early this year, when the Court granted similar relief to a group of nuns who brought a very similar claim to Wheaton’s. The most likely explanation for why the Court granted relief then, and also the most likely explanation for why it granted similar relief to Wheaton College, is that courts often like to maintain the status quo that existed prior to litigation until they actually have the chance to decide a case on the merits.

Wheaton College claims that it will be complicit in some kind of sin if it submits the form that it is required to submit under law. If the Court had not granted the temporary relief that they granted on Thursday, Wheaton might have submitted the form in order to avoid being fined. Thus, Wheaton might have taken the very action they went to court in order to avoid having to take. 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.

There’s also another reason to think that the Court may ultimately rule against Wheaton if it fully considers this case on the merits. Justice Stephen Breyer was one of the dissenting justices in Hobby Lobby, but he joined with the majority in the Wheaton College order. Tom Goldstein argues that Breyer may have joined the majority because it gave him the opportunity to shape the substance of that order to ensure that “the government can require Wheaton to provide it with notice of its religious affiliation and can on that basis ensure that the same coverage is provided,” and Goldstein may very well be correct. Another possibility, however, is that Breyer joined the Wheaton College order because he saw it as a very temporary measure intended only to preserve the status quo. Given Breyer’s dissent in Hobby Lobby, it is highly unlikely that he would join the Wheaton College order just four days later if he understood it to expand Hobby Lobby even further.

So there is a good chance that the Wheaton College order is intended to do nothing more than to place this case in a holding pattern until it can be resolved by a full hearing on the merits. There is not yet any certainty that the Court will ultimately rule in Wheaton’s favor.

Nevertheless, there is also no certainty that Wheaton will lose, and if it should win the legal consequences would be quite significant. As ThinkProgress previously explained, the federal religious liberty law at issue in this case provides that “[g]overnment shall not substantially burden a person’s exercise of religion” except when a specific exemption applies. In other words, “a person with a religious objection to the law cannot immunize themselves from following it merely because they don’t like the law, they have to show that the law imposes a burden on their faith that is substantial.”

This is why Wheaton should lose its case — because being required to submit a form informing the government that you are invoking your legal rights is not a substantial burden. It’s hardly a burden at all.

If the Court ultimately sides with Wheaton, they will effectively write the “substantial burden” requirement out of the law altogether. The result will almost certainly be a flood of litigation alleging that the most trivial burdens violate religious liberty.