On the eve of the nation’s annual Independence Day celebration, the Supreme Court enjoined enforcement of the contraception mandate against Wheaton College, a religious institution that objected to the accommodation HHS offered religious non-profits. The order was issued over the dissent of three justices (Sotomayor, Ginsburg and Kagan).  Coming so soon after the Court’s controversial Hobby Lobby decision, this action (and the resulting political commentary), has generated some confusion about the meaning of Hobby Lobby and the future of the contraception mandate.  In this belated post, I’ll try to straighten out a few things and offer a prediction on how this litigation may end.

First, it’s important to remember that all the Court did is enjoin enforcement of the mandate against Wheaton pending the resolution of its appeal.  While this may indicate a majority of the Court believes Wheaton has presented a serious claim, it does not mean that a majority of the Court believes Wheaton should ultimately prevail.  Should this case or another presenting the same claim eventually reach the Court, there may well be five votes to uphold the current accommodation.  At this point, we don’t know.

While we don’t know whether Wheaton’s claims could attract a majority, we know that at least three justices would reject Wheaton’s claim that being required to fill out the ESBA Form 770 and submit it to a third-party administrator constitutes an impermissible burden on its religious exercise.  We also know that three justices were upset that the majority granted Wheaton’s injunction request, both because of a disagreement on the scope of RFRA and because the dissenters do not believe Wheaton College satisfied the requirements of the All Writs Act.

In her Wheaton College dissent, Justice Sotomayor accuses the majority of disregarding its own four-day-old precedent in granting an injunction against enforcement of the contraception mandate: “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 . . . retreats from that position.”  In so doing, Justice Sotomayor wrote, the Court’s majority “evinces disregard for even the newest of the Court’s precedents and undermines confidence in this institution.”  Indeed, she suggested, the Court had been dishonest: “Those who are bound by our decisions usually believe they can take us at our word. not so today.”

This is strong language, but I think it is a bit overdone (perhaps, in part, due to the short amount of time available to draft the opinion).  As I read it, Justice Sotomayor’s dissent miscomprehends the Court’s reasoning in Hobby Lobby and (in so doing) contradicts Justice Ginsburg’s Hobby Lobby dissent that Justice Sotomayor herself joined.  Here’s why.

In Hobby Lobby the Court concluded that the existence of an accommodation for religious non-profits demonstrated that the contraception mandate did not represent the least restrictive means of advancing the government’s interest in expanding contraception coverage.  This does not mean that the accommodation is, itself, the least restrictive alternative available.  Finding that option B is “less restrictive” than option A suffices to demonstrate that option A is not the least restrictive option, but  tells us nothing about whether there exists yet another option — option C, D or E — that might be even less restrictive still.

So, while the Court did “expressly rely” on the accommodation’s existence to conclude that the mandate was not the least-restrictive alternative, this in no way precludes the Court from upholding RFRA claims against the accommodation if and when such a claim is before the Court in a future case.  While Justice Sotomayor’s dissent seems shocked by this conclusion, Justice Ginsburg’s Hobby Lobby dissent expressly noted the majority’s admonition that it did “not decide today whether” the accommodation “complies with RFRA for purposes of all religious claims.” (Dissent at 30, quoting slip op. at 44.)  Further, in response to the dissent’s claim that the Hobby Lobby majority was being “noncommital” on the sufficiency of the accommodation, Justice Alito wrote in FN40: “The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.”  Nor does the Wheaton College order resolve this claim or otherwise preclude the Court from upholding the accommodation on the merits.

Unfortunately, some commentators have repeated the dissent’s errors.  For instance, this Slate essay by Dahlia Lithwick and Sonia West accuses the Court of contradicting itself, as does this commentary by Tim Jost.  The Lithwick-West essay also mistakenly claims that the Wheaton College order “said that this very same workaround it had just praised was also unconstitutional.”  Yet as Ed Whelan notes, the order neither offers a conclusion on the legality of the accommodation nor does it rest on constitutional grounds.  The order, based on Wheaton College’s statutory claim under RFRA, merely enjoins enforcement of the mandate “pending final disposition of appellate review” and explicitly says that it “should not be construed as an expression of the Court’s views on the merits.”

Does the Wheaton College order indicate that, under RFRA, there is nothing the government may do to expand contraception coverage short of directly providing such coverage itself to employees of objecting employers?  I don’t think so.  As expressed in its filings, Wheaton College objects to “executing the government’s Form to designate, obligate, and incentivize the third-party administrator to provide religiously objectionable drugs on its behalf.”  Yet Wheaton has also maintained that it “has no objection to informing the Secretary of its religious objections to the Mandate–it has done so repeatedly, including in the exact same form prescribed in the Little Sisters injunction.”  This suggests the outline of a further accommodation that would satisfy RFRA without too much trouble.  As Tom Goldstein suggests, it appears HHS could prevail by altering some of the language on the form (particularly that which indicates contraception coverage will be provided) and allowing the objector to submit the form to the government instead of to the insurer or third-party administrator.  (For a contrary view, see Marty Lederman’s post here.)  The accommodation outlined by Tim Jost at the end of this post would also seem to resolve the controversy.

While Wheaton College and some other religious objectors may not be perfectly happy with this end result, I suspect it would pass muster with the Court (assuming, for the moment, that a majority is not willing to uphold the accommodation as currently written). Requiring objectors to do little more than notify the government of their objection would seem to recognize the distinction between cases like Thomas v. Review Board (upholding religious objection to working in munitions plant because of how munitions could ultimately be used), on the one hand, and Bowen v. Roy (rejecting religious objection to the government’s internal use of child’s Social Security number) and U.S. v. Lee (rejecting religious objection to paying Social Security taxes).  Further, it is hard to imaging an accommodation that serves the government’s asserted interest in providing contraception coverage does not involve informing the government of the objection and ensuring that the government has the information it needs to ensure that the required coverage is provided.

If all this is true, why didn’t HHS simply modify the form to begin with (or announce plans to do so after the Little Sisters injunction)?  That’s a good question. Perhaps I have overlooked a problem with the accommodation sketched above or perhaps HHS simply rejects any claim that signing a form may constitute a “substantial burden.” (After all, not every burden on religious belief need be “substantial.”)  Whatever the reason, barring Congressional intervention or a decision upholding the accommodation in a subsequent case, I suspect relatively minor changes to the existing accommodation and form will resolve this litigation if there is not a majority on the Court willing to uphold the current accommodation.

For more, here’s an interesting post by Tom Goldstein on Justice Breyer’s vote in Wheaton College and here are my prior posts on the Wheaton College order, continuing RFRA litigation, and the future of contraception coverage, and here are our collected Hobby Lobby postings (and our pre-21014 postings are here).