Well, at least I have confirmation that I wasn’t exaggerating yesterday when I said Alito lied in the Hobby Lobby ruling. Dahlia Lithwick and Sonja West at Slate say the same thing. They say it with considerable heat and energy.
…moments before they adjourned for their summer recess, the justices proved they can act quite quickly and recklessly when it comes to violating the terms of a controversial opinion they handed down only days earlier. It’s as if the loaner car the court gave us in the Hobby Lobby ruling broke down mere blocks from the shop.
In Burwell v. Hobby Lobby, the Supreme Court ruled that it was a “substantial burden” on the religious freedoms of closely-held corporations for the government to require them to provide contraception as part of their employee health care plans. The court didn’t say that the government could never require a company to do something that violated its religious beliefs, but rather that the government had to use the “least restrictive alternative.” That means that if there is a slightly less burdensome way to implement the law, it needs to be used. To prove that the Affordable Care Act’s contraceptive mandate was not the “least restrictive alternative,” the court pointed to a workaround in the law for nonprofits: If there are religious objections to a medical treatment, third parties will provide coverage to the employees.
Yet in an unsigned emergency order granted Thursday evening, the very same court said that this very same workaround it had just praised was also unconstitutional, that this workaround also burdened the religious freedom of religious employers. Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.
So, they lied, and Alito’s ruling lied.
Or, I suppose, they simply changed their minds Monday evening, or possibly it was Wednesday afternoon, or even Thursday morning.
Except…then wouldn’t they have to wait for a new case? Aren’t they supposed to adhere to their own rulings until such time as they overturn them or tweak them?
Well yes, probably, which is probably why Sotomayor was so scathing in her dissent from that emergency order. (What fucking emergency??)
A majority of the court granted Wheaton a temporary injunction allowing it to refuse to comply with the workaround, or “accommodation,” the court had just held up as the answer in Hobby Lobby. Under the ACA, churches have always been categorically exempt from the mandate. The law further allows religious nonprofits that don’t want to offer contraception to submit a short form, known as Form 700, which affirms their religious objection to providing contraception. Form 700 enables the company’s insurers or third-party administrators to cover the birth control instead of the employer. Easy peasy, right? Sign the form and you don’t have to provide the coverage that violates your religious beliefs. In Hobby Lobby, Justice Alito wrote that this solution “achieves all of the government’s aims while providing greater respect for religious liberty.”
Wheaton, however, along with many other religious not-for-profits, have long objected to this very workaround. They filed lawsuits claiming that the mere fact of signing a form noting their religious objection to contraception coverage triggered third parties to provide the contraception, which triggered women to have access to morning-after pills and IUDs, which in their view were akin to abortions, and thus violated their religious consciences. Signing the form, they said, was the same as actually providing the contraceptives themselves. It’s the butterfly effect of contraception. Any time Wheaton flaps its religious-conscience wings, a woman somewhere ends up with an IUD, and Wheaton’s religious liberties are violated.
And Thursday night a majority of the court agreed. The order is a preliminary injunction. The court will need to decide this and dozens of similar cases in the future. The justices caution that this in no way reflects their views of the future cases. But for our purposes, let it be known that the very workaround the court gave to religious objectors only four days earlier now likely violates their religious liberty as well.
Disgust doesn’t even begin to describe it.