On Wednesday, Justice Samuel Alito temporarily stayed a decision by the United States Court of Appeals for the Third Circuit upholding Obama administration rules expanding access to birth control. Alito’s order is not particularly surprising, and it only stays the Third Circuit order pending further action by Alito or the Court.
Nevertheless, Alito’s order hints that a looming battle between religious employers who object to birth control and their employees, who wish to have the same access to contraception as people who work for secular employers, will soon need to be resolved by the Supreme Court. Though Alito’s own decision in Hobby Lobby contains language suggesting that the administration’s current rules are acceptable, the Supreme Court handed down an order just four days after Hobby Lobby was decided which suggests that many of the justices were already prepared to expand their recent decision. Alito’s order on Wednesday is consistent with that four-days-after-Hobby-Lobby decision in a case called Wheaton College v. Burwell.
On the day Hobby Lobby was decided, the Obama administration had established two differing sets of rules to ensure that workers could obtain contraceptive coverage. Most employers were required to include birth control in the health plan they provided to their employees, but non-profits who object to contraception on religious grounds could opt out of this requirement by filling out a form stating their objection and identifying the company that administers its health insurance benefits. The government would then work directly with this company to ensure that it provided contraceptive coverage to the non-profit employer’s workers.
Though Hobby Lobby held that many for-profit employers with religious objections to birth control could opt out of the requirement to provide such coverage to their workers, it also strongly hinted that the fill-out-the-form option would pass muster under the Supreme Court’s newly announced religious liberty standard. This option, Alito noted in his majority opinion, “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.”
Four days later, when a majority of the Court held that Wheaton College could assert its objection, at least temporarily, to filling out the form, Justice Sonia Sotomayor all but accused her colleagues of lying in Hobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Wheaton College, however, was only a temporary order permitting the school to refuse to fill out the form, so the question of whether the Court will allow employers who object to the form to effectively deny birth control coverage to their employees remains unresolved. Since Wheaton College, the administration has issued new rules that are even more accommodating to religious objectors than the fill-out-the-form option. The current rules apply to for-profit and non-profit employers alike, and they permit an employer to simply write a letter stating their religious objection and informing the government of the identity of their insurance administrator if the employer objects to the form itself.
Nevertheless, some employers, including the employers who sought out Wednesday’s order from Alito, remain opposed even to this accommodation. Because sending the letter will set in motion a chain of events that may lead to someone using contraception, conservative “religious liberty” groups have taken the position that sending the letter would make employers “complicit” in the act of providing birth control.
Thus far, the lower courts have not been particularly sympathetic to this argument. As the Third Circuit wrote in the decision temporarily stayed by Alito, “[f]ederal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured plans, to cover contraceptive services.” Thus, the plaintiffs’ “real objection” isn’t to sending a form or letter to the federal government; it is to “what happens after the form is provided—that is, to the actions of the insurance issuers and the third-party administrators, required by law, once the [plaintiffs] give notice of their objection.” Federal law does not grant these plaintiffs “a religious veto against plan providers’ compliance with those regulations, nor the right to enlist the government to effectuate such a religious veto against legally required conduct of third parties.”
Nevertheless, Alito’s order is a warning that this issue will not remain in the lower courts forever. Indeed, the Third Circuit case provides the Supreme Court with a vehicle that it could use as soon as next fall to consider whether the send-the-letter or the fill-out-the-form options will survive contact with the justices, or whether federal law does, indeed, give religious employers “the right to enlist the government to effectuate . . . a religious veto against legally required conduct of third parties.”