The Washington Post

High court’s college birth-control ruling may further outrage Democrats, mobilize them

With much of Washington already gone for the holiday, the Supreme Court issued a short legal ruling Thursday with the potential to deepen the political backlash among Democrats that was sparked by the court’s earlier Hobby Lobby decision.

The majority of the justices ruled that Wheaton College, a small evangelical school in Illinois, does not for now have to comply with the Obama administration’s requirement that it fill out a form to register religious objections to providing some types of contraceptive coverage mandated by the Affordable Care Act.

The opinion said that until full arguments are heard by the court, Wheaton need only file a letter with the federal government stating the college’s religious objections.

Legal experts say the temporary decision is likely to embolden religious groups and lead to a wave of lawsuits and objections to the required form.

“I certainly think you will see more objections from religious nonprofits . . . and perhaps more interlocutory orders like this one,” said Paul Horwitz, a constitutional law scholar at the University of Alabama law school.

The injunction prompted a sharp rebuke from the court’s three female justices, who took the ruling — which does not mean that the court will ultimately side with the school — as reneging on the logic expressed by the majority of the court in the Hobby Lobby case.

In that decision, issued Monday, the court determined that the chain of craft stores does not have to pay for insurance for forms of contraception it deems immoral — in part because the chain didn’t have a reasonable alternative such as filing the form that Wheaton objects to. That option was not provided to the craft-store chain.

But some colleges and religious organizations say that signing the form authorizes third parties to provide contraceptive coverage, which, they say, still makes them complicit in actions that offend their religious beliefs.

What remains to be seen is whether the decision to allow Wheaton to operate outside of the mandate will further outrage women’s groups on the left, who are already likely to play a significant role in the 2014 midterm elections.

Democrats have crafted much of their strategy in 2014 — a midterm year in which securing a House majority seems improbable and they may lose control of the Senate — around the imperative of turning out women voters, especially unmarried women.

Strategists on both sides of the aisle agree that the “war on women” narrative has historically played well for Democrats.

Within hours of the Hobby Lobby decision, progressive and left-leaning groups that focus on women’s issues, such as Planned Parenthood and EMILY’s List, were using it for midterm fundraising.

On the right, the Hobby Lobby decision galvanized groups that saw it as an opportunity to file many more lawsuits such as Wheaton’s.

“The unfair [Health and Human Services] mandate gave family businesses two nonchoices: Either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for noncompliance,” declared Tony Perkins, the president of the Family Research Council, a Christian public policy group, after the Hobby Lobby decision was announced.

“It is our hope that lower courts will follow the Supreme Court’s lead and protect nonprofits like Little Sisters of the Poor, Priests for Life and Wheaton College from the unfair HHS mandate.”

That could keep the battle over the contraception requirement in the headlines and in the minds of voters deep into the summer.

Legal experts cautioned on Friday that the injunction issued by the court does not signal that it will ultimately rule in favor of the school — or in favor of other schools and institutions in similar cases.

“It was crucial to the majority’s position in Hobby Lobby that the government had already established that there was a less restrictive alternative. It certainly looked like they found that to be a perfectly good option,” said Brian Leiter, director of the University of Chicago’s Center for Law, Philosophy, and Human Values.

“So, if the question is what are they going to do when they actually hear this case, the logic of Hobby Lobby would suggest that Wheaton will lose.”

Wesley Lowery is a national reporter covering law enforcement and justice for the Washington Post. He previously covered Congress and national politics.

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