Until this week, federal appeals courts were unanimous in holding that religious objectors could not exempt themselves from Obama administration rules protecting workers’ access to birth control. This unanimity was unsurprising, moreover, as the Supreme Court’s Hobby Lobby decision, while granting new rights to religious objectors who challenged the birth control rules at issue in that case, strongly suggested that the current rules would survive judicial scrutiny.
The unanimity, however, is now over. On Thursday, an entirely Republican panel of United States Court of Appeals for the Eighth Circuit handed down the first federal court of appeals decision allowing religious objectors to refuse to comply with the administration’s current rule. Though this issue was always likely to reach the Supreme Court, the fact that federal appeals courts are now divided on the question all but guarantees that it will be heard by the justices.
Hobby Lobby permitted religious objectors to refuse to comply with a rule requiring employers to include birth control in their employer-provided health plans. As Justice Ruth Bader Ginsburg explained in dissent, that decision effectively overruled longstanding doctrines establishing that “accommodations to religious beliefs or observances . . . must not significantly impinge on the interests of third parties.” Under Hobby Lobby a religious objector may now wield their faith to diminish the rights of others.
Nevertheless, the Hobby Lobby opinion included a small silver lining for women employed by the sort of employers who would seek to take advantage of this decision. Though a rule requiring religious objectors to include birth control in their own employer-provided policies was deemed beyond the pale in Hobby Lobby, Justice Samuel Alito’s opinion also compared this rule favorably to an alternative method of providing birth control to workers. Under this alternative method, which the Obama administration has since made available to all employers with religious objections to birth control, an objecting employer need only fill out a form or provide a letter to the federal government informing it that the employer has a religous objection naming the employer’s insurance administrator. The government then works separately with that insurance company to provide a separate policy for the employer’s workers that covers birth control.
According to Alito, this alternative “achieves all of the Government’s aims while providing greater respect for religious liberty.”
Judge Roger Wollman’s opinion on behalf of the Eight Circuit panel, however, relies on a different decision the Supreme Court handed down just days after Hobby Lobby. Four days after Alito seemed to endorse the just-fill-out-a-form alternative to the rule at issue in Hobby Lobby, the Court granted temporary relief to a religious college that sought an exemption from that alternative. Dissenting from that order, Justice Sonia Sotomayor practically accused her colleagues in the Hobby Lobby majorty of lying. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote, referring to the Court’s recent language suggesting that the fill-out-the-form alternative would pass muster. “Not so today.”
According to Wollman, this second order “dispelled” the “suggestion that the Court in Hobby Lobby sanctioned the existing accomodation process.”
Now that this issue is almost certainly destined for Supreme Court review, the justices will have to show their hand and reveal whether Alito’s suggestion in Hobby Lobby meant what it appeared to say — or whether Sotomayor was right to question the reliability of that suggestion.