The United States Court of Appeals for the Seventh Circuit’s decision in Wheaton College v. Burwell, which was handed down on Wednesday, joins the pantheon of court of appeals decisions upholding the Obama administration’s current birth control policies. This decision is not particularly surprising — at the moment, the courts of appeal are unanimous in this approach and it also applies a similar case within the Seventh Circuit that reached the same result. Nevertheless, the Seventh Circuit’s Wheaton College decision has tremendous symbolic value since it concerns the very same plaintiff that led the Supreme Court to suggest that it would impose new limits on women’s access to birth control just days after it took a bite out of contraceptive access in Burwell v. Hobby Lobby.
Though Hobby Lobby permitted many private employers to refuse to include contraceptive coverage in their employees’ health plans if those employers object to birth control on religious grounds, it also included language suggesting that the government could ensure that these workers obtained contraceptive coverage through an alternative means. The specific contours of this alternative have changed somewhat in the wake of Hobby Lobby, but the basic structure is that a religious objector must notify the government that it wishes to be exempt from the legal requirement to cover birth control, and it must tell the government which company administers its employees’ health plans (alternatively, the objector may notify this company directly). The government then works directly with this insurance company to provide contraceptive coverage to the religious objector’s employees (or, in the case of a school like Wheaton College, to its employees and its students). Thus, as Judge Richard Posner writes in the Seventh Circuit’s decision, insurers “pick up the ball” if an employer “decides, as is its right, to drop it.”
The Supreme Court’s opinion in Hobby Lobby contains language that, as mentioned above, suggests that this alternative method of extending contraceptive coverage to workers is acceptable under federal religious liberty law. Four days later, however, the Supreme Court granted Wheaton College’s request for a temporary order allowing it to refuse to comply with some of its limited obligations under this alternative method. Several members of the Court interpreted this as a decision rolling back Hobby Lobby four day-old language suggesting that the alternative method was acceptable. As Justice Sonia Sotomayor wrote in dissent, “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”
Since then, however, every single court of appeals to consider the question has held that federal religious liberty law does not have much to say about the alternative method of expanding birth control coverage. Though some employers have argued that requiring them to notify the government of which company administers their health plan is a violation of their religious liberty — because this notification sets in motion a chain of events that may lead to a woman using contraception — courts have largely agreed that religious liberty law does not permit a religious objector to prohibit a private company and the federal government from acting on their own to provide people with birth control coverage. As Posner writes, “it is the law, not any action on the part of the college, that obligates insurers” to cover Wheaton’s employees and students.
Now that Wheaton has lost in a federal appeals court, it is all but certain that they will ask the Supreme Court to take up their case. One year after the Supreme Court’s original Wheaton College order, in other words, this case has come full-circle back to the justices. This time, however, it will be much harder for the Court to delay the issue with a temporary order.