The Wall Street Journal downplayed a “rare” and “extreme” Supreme Court order that could make it even more difficult for women to obtain contraceptive coverage in the wake of the Hobby Lobby decision, arguing that Justice Sonia Sotomayor “may come to regret her furious dissent” from the ruling.
On June 30, the conservative justices of the Supreme Court held in Burwell v. Hobby Lobby that the chain craft store was exempt from a provision in the Affordable Care Act (ACA) that requires employer-provided health insurance plans to cover preventive health care services, including birth control. The majority opinion, helmed by Justice Samuel Alito, suggested that the government offer for-profit, secular corporations like Hobby Lobby the same accommodation that exempts religiously-affiliated non-profits from the birth control requirement. In order for such non-profits to take advantage of this exemption, they must sign a self-certification form that states their moral objection to birth control, which allows their insurance companies to provide the medications to employees at no additional cost.
But the Court, not to mention right-wing media outlets, ignored the flaw in this plan -- that the religious accommodation is also being challenged as an illegal burden on religious freedom. Wheaton College, a Christian school in Illinois, is one of the challengers arguing that signing the exemption form “makes it complicit in grave moral evil” because the college “sincerely believes” that signing will “enable the flow of abortion-inducing drugs.” On July 3, the Supreme Court issued an emergency injunction in Wheaton's favor, excusing the college from signing the exemption form until after its lawsuit is heard by the lower courts. Sotomayor, joined by Justices Ruth Bader Ginsburg and Elena Kagan, dissented from the order, writing that “those who are bound by our decisions usually believe they can take us at our word. Not so today. ... [Granting the injunction] evinces disregard for even the newest of this Court's precedents and undermines confidence in this institution.”
In a July 6 editorial, the Journal dismissed the significance of the injunction, and called Sotomayor's dissent an “overreaction”:
Our guess is that Supreme Court Justice Sonia Sotomayor may come to regret her furious dissent last week to a simple Court order granting a temporary religious liberty reprieve to Wheaton College from having to obey ObamaCare's contraception mandate. She and the two other female Justices accused the Court's majority of all sorts of legal offenses, not least dishonesty.
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Wheaton is challenging that accommodation as too restrictive, but the Court did not rule on the merits last week. All it did was grant a reprieve from having to obey the mandate while the case is being heard. This says little about how the Court might eventually rule, notwithstanding Justice Sotomayor's angry implication. The reprieve will also not deny any reproductive services to anyone.
Justice Sotomayor suggested the majority had harmed the Court's reputation, but it seems to us that her overreaction did far more to make the Justices a political target.
Although the editorial board is correct that the Court did not rule on the merits of Wheaton College's claim, the Journal ignores that granting this kind of emergency injunction is exceedingly rare. As Sotomayor noted in her dissent, “the Court grants Wheaton a form of relief as rare as it is extreme ... Injunctions of this nature are proper only where 'the legal rights at issue are indisputably clear.'” In this case, it is not “indisputably clear” that Wheaton College's rights are being violated since the lower courts have yet to rule on the lawsuit, and because the Supreme Court in Hobby Lobby pointed to the religious accommodation as an example of a “less restrictive” alternative to the ACA's birth control requirement. In Sotomayor's words, the Court “retreats from that position” by granting an emergency injunction that allows Wheaton College to avoid signing the form because it might “substantially burden” the school's religious beliefs.
The Journal ignores that the Court's order fails to explain how its solution is any less burdensome than the pre-existing form. Moreover, the order does not require objectors to identify their insurance provider, which could make it nearly impossible for the Department of Health and Human Services (HHS) to identify which providers it needs to coordinate with to ensure contraception benefits are appropriately administered. As former Solicitor General Walter Dellinger told The New York Times, granting Wheaton College's injunction makes it “clear that [women's] access to contraception is by no means guaranteed given the administrative complexities the court has now imposed” on HHS.
As Justice Ginsburg warned in her dissent in Hobby Lobby, “the Court, I fear, has ventured into a minefield” by agreeing to engage in an analysis of the merits of religious beliefs “or the sincerity with which an asserted religious belief is held.” But the Journal rejected Ginsburg's concerns, calling her “hyperbolic dissent ... a political call to arms unworthy of a junior judge, much less the nation's highest Court.”