Maybe Hobby Lobby won’t be as big of a deal as we thought it would be.
As a matter of legal doctrine, the Supreme Court’s decision in Burwell v. Hobby Lobby was an earthquake, holding that business owners could use their own religious beliefs to limit their employees’ rights. As a practical matter, however, its real impact is still up in the air. So far, every single federal appeals court to consider the question has approved current Obama administration birth control rules that accommodate religious objectors while still ensuring that most employees have access to birth control. That includes an opinion by Judge Jerry Smith, one of the most conservative federal judges in the country.
Yet, despite this winning streak, women who work for the litigants in these cases could be forgiven if they thought that they were the big losers in court. Last month, for example, the United States Court of Appeals for the Tenth Circuit handed down its opinion in a closely watched case, holding that current federal birth control rules do not “substantially burden” religious objectors nor do they “infringe upon their First Amendment rights.” On Friday, however, the Tenth Circuit stayed this order pending the Supreme Court’s final disposition of the case.
This isn’t a particularly surprising decision. Indeed, it is really the only proper course for a court of appeals given how the Supreme Court has handled birth control decisions post-Hobby Lobby.
The Hobby Lobby decision itself allowed religious objectors to exempt themselves from federal rules requiring employers to include birth control in employer-provided health plans. Yet it also contained language strongly suggesting that an alternative method of ensuring that workers have access to birth control — where employers fill out a form if they have a religious objection and then the government works separately with the employer’s insurance administrator to provide birth control coverage to employees — would survive Supreme Court review. The Obama administration’s current rules call the Supreme Court on this bluff, implementing the very same accommodation that the Hobby Lobby opinion implied to be legally acceptable.
Four days after Hobby Lobby was handed down, however, a majority of the Court granted temporary relief to a religious college that objected specifically to the fill-out-the-form accommodation in an order that remains in effect today (the Court did require the college to give formal notification of its objection to the administration in lieu of the form, but that formal notification could exclude key information that the government needs to implement its policy). In an angry dissent, Justice Sonia Sotomayor all but accused her colleagues of lying in the Hobby Lobby opinion. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”
Indeed, the Supreme Court has thus far gone out of its way to ignore the unanimous consensus among federal appeals courts who say that employers must comply with the Obama administration’s current rules. In February, for example, the Third Circuit sided with those rules. Yet, in April, Justice Samuel Alito stayed that decision in what was styled as a temporary order pending “further order of the undersigned or of the Court.” More than two months later, however, no “further order” had issued, prompting the solicitor general to write the Court asking why this case remained in limbo.
The Court responded to the solicitor general at the end of June with a brief order effectively holding that the case must stay in limbo.
For the moment, in other words, anti-birth control employers are winning despite the fact that they keep losing. Until the Supreme Court releases its hold over these cases, the unanimous consensus among federal courts of appeals means very little at all. It is also an ominous sign for supporters of reproductive health that they will have a harder fight ahead of them in the Supreme Court than they have thus far faced in the courts of appeal.