Today, the Supreme Court granted Wheaton College an injunction pending appeal against enforcement of the contraception mandate, even though Wheaton was eligible for the accommodation HHS has provided for religious non-profits.  Specifically the Court ordered:

If the applicant informs the Secretary of Health and Human Services in writing that it is a non-profit 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.

The unsigned opinion for the Court made clear that this was not an opinion on the merits of Wheaton’s RFRA claim. Nonetheless, Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissented from the order.

Although the order does not resolve the merits of Wheaton’s claim, it does suggest that there might be less restrictive alternative to the existing HHS accommodation.  Wheaton and some religious employers claim that the form HHS requires them to fill out and sign (EBSA Form 700) substantially burdens their religious belief because it directly facilitates the provision of contraceptive coverage to which they object. Yet as the order notes, religious objectors are able to notify the government of their objections to contraception coverage without using the form, and that nothing in RFRA would prevent the government from using this information to facilitate contraception coverage for relevant employees. This would suggest that should a majority of the Court find the existing accommodation insufficient, a RFRA-compliant accommodation based on a different form or reporting procedure should be relatively easy to create.  Yes, some religious objectors might object to any form, but an objection to informing the government of one’s objection, due to the knowledge that the government may use this information in an objectionable fashion, would seem to fail for the same reasons that religious objections to paying taxes fail.  So it would seem that even if Wheaton’s current objections win out, those who oppose the contraception mandate are close to the end of the line of what they can demand under RFRA.

Lyle Denniston has more on SCOTUSBlog here.