Friday, July 04, 2014

Supreme Court In Post-Term Order Enjoins Non-Profit Contraceptive Accommodation, Pending Appeal

It turns out that the U.S. Supreme Court was not completely finished with its work last Monday.  Yesterday it granted an injunction to a religiously-affiliated liberal arts college that objects to complying with the Affordable Care Act contraceptive coverage accommodation for religious non-profits.  Wheaton College, which was denied a preliminary injunction by an Illinois federal district court (see prior posting), applied to Justice Kagan for an emergency injunction pending appeal. Justice Kagan referred the application to the full court. In an order issued last Monday, separate from the full Order List for the day, the Court issued a temporary injunction and called for a response by Wednesday.  On Thursday in Wheaton College v. Burwell, (S.Ct., July 3, 2014), in an unsigned order the court held:
If the applicant informs the Secretary of Health and Human Services in writing that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcing against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review. To meet the condition for injunction pending appeal, the applicant need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third-party administrators....
[T]he applicant has already notified the Government—without using EBSA Form 700—that it meets the requirements for exemption from the contraceptive coverage requirement on religious grounds. Nothing in this order precludes the Government from relying on this notice, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act.
In light of the foregoing, this order should not be construed as an expression of the Court’s views on the merits.
Justice Scalia noted that he concurs in the result. Justice Sotomayor, in a strongly worded dissent, Joined by Justices Ginsburg and Kagan, said in part:
[J]ust earlier this week in Burwell v. Hobby Lobby Stores, Inc., ... the Court described the accommodation as “a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage.” ...  Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might ... retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution....
... I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so.
The Washington Post and SCOTUS Blog both report on the Court's action.