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Broader right to object to birth control

Expanding the rights of religious opponents of birth control, a divided Supreme Court on Thursday afternoon spared an Illinois college — and maybe hundreds of other non-profit institutions — from obeying government regulations that seek to assure access to pregnancy prevention services for female workers and students.  In the same order, the majority essentially told the government to modify its own rules if it wants to keep those services available.

Three Justices wrote a sharply worded dissent, accusing the majority of creating on its own a “new administrative regime” that will seriously complicate the operation of the birth control mandate under the new federal health care law.  The majority, the dissenters said, “has no reason to think that the administrative scheme it foists on the government today is workable or effective on a national scale.”

The ruling, which the majority insisted was temporary and had settled nothing finally about the legal issues at stake, came three days after the Court in Burwell v. Hobby Lobby had given for-profit businesses whose owners have religious objections to birth control a right to refuse to provide those services in their employee health plans.

The plea by Wheaton College, a religious institution in Illinois with about 3,000 students, moved the Court beyond for-profit firms to the world of non-profit religious colleges, hospitals, and other charities.  The government had already moved to accommodate their beliefs, but that had not gone far enough for the college and for scores of other non-profits.  With the Court’s new order, they gained additional separation from the birth-control mandate.

The order appeared to be supported by a six-to-three vote.  The order itself was unsigned, and the only notation about the position of the six apparently in the majority was that Justice Antonin Scalia said he only joined the result, not the reasoning behind it.

Thus the order and its justification appeared to have the full support of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Stephen G. Breyer, Anthony M. Kennedy,and Clarence Thomas.  If, in fact, Justice Breyer did join in supporting that role, it was a surprise, because he had dissented earlier in the week when the Court gave Wheaton College a few days of relief until it could consider the case more fully.

Justice Sonia Sotomayor wrote a fifteen-page dissent, joined by Justices Ruth Bader Ginsburg and Elena Kagan.

Among other complaints of the dissenters, they said that the new ruling went beyond what the full Court had done in January, in allowing a Catholic charity in Colorado, the Little Sisters of the Poor, to avoid becoming involved in the mandate.  The dissenters said there were significant differences between the health plans for Little Sisters’ female workers and the plans for Wheaton College’s staff and students.

The dissenters also accused the majority of going back on its word in the Hobby Lobby situation.  The Court had relied upon the availability of birth control services through alternative means as a reason to justify giving for-profit businesses an exemption from the mandate.  By compelling the government to make a further accommodation to Wheaton College, the dissenting opinion said, the Court “retreats from the position” that the alternative was sufficient.

“That action,” Justice Sotomayor wrote for the dissenters, “evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”

Nothing in the order approved by the majority answered those criticisms.

Here, in simpler form, is what the Court’s new order required:

First, the college need not file a form prescribed by the government to claim the accommodation that would shift the legal duty to its insurer or plan administrator to provide the actual birth control services.  The college objected even to filing that form, saying it put the college into the middle of assuring access to those services.

Second, the college need only write a letter to the government to claim an exemption.

Third, since the college has already written and sent such a letter, that is enough to block the government from enforcing the mandate in any way against the college.

Fourth, the order declared that it was not intended to affect “the ability of the [college’s] employees and students to obtain, without cost, the full range of contraceptives [approved by the federal Food and Drug Administration].”

And, finally, to make it possible for that access to remain, the Court said the government may rely on the college’s letter to the government as the mechanism for facilitating the access to the birth control services.  There is nothing in existing government regulations that allows such a letter instead of the government form, and nothing in those regulations that says such a letter is enough to guarantee access to birth control.  But the Court order appears to be, in effect, a rewrite of those regulations.

As the Wheaton College dispute was unfolding before the Court this week, the Obama administration told the Court that, if it did stop enforcement of the mandate against the college (in the way that the Court has now done), that would deprive the college’s employees and students from birth control coverage.  Whether the government will now treat the Court’s order as clearing the way for that coverage is unclear at this point.

Although the order was limited to the request by Wheaton College alone, other religious non-profits are making the same plea for additional protection against the mandate.  And the dissenting opinion on Thursday foresaw that “hundreds or thousands of other objectors” would now be eligible for the same protection.



Recommended Citation: Lyle Denniston, Broader right to object to birth control, SCOTUSblog (Jul. 3, 2014, 6:22 PM),