Tolerance in the court

In the last week of June and into early July, the U.S. Supreme Court dismantled the Department of Health and Human Services’ regulatory scheme surrounding the contraceptive mandate, for both religiously owned for-profits and religious nonprofits. The plaintiffs haven’t gotten everything they wanted—but they came close.

First and foremost, the court delivered a big win for Hobby Lobby and Conestoga Wood Specialties on June 30, establishing that family-owned corporations can qualify for protection under the Religious Freedom and Restoration Act (RFRA).

Justice Samuel Alito, writing the 5-4 majority opinion in Burwell v. Hobby Lobby Stores, Inc., said religious exercise is a broad category which can extend to how an entrepreneur runs a business.

RFRA requires that for any laws imposing a substantial burden on religious exercise, the government must show that it is using the “least restrictive means” to accomplish its “compelling interest.” The court ruled that as applied to religiously owned corporations, the government’s contraceptive mandate was certainly not the “least restrictive means” of fulfilling the government’s “compelling interest” in providing free contraceptives and potential abortifacients.

The federal government had granted numerous exemptions from the mandate for other groups, and that showed it had alternatives available, according to the court. The court said the government could try to find another way to supply free Plan B and Ella to Hobby Lobby and Conestoga employees—since the businesses cover all contraceptives except those two drugs that they consider potential abortifacients.

Alito hemmed the ruling: He said that corporations could not use the ruling as a pretext for not providing health services, and that courts should be able to tell easily if a religious business owner is sincere in his beliefs. Hobby Lobby and Conestoga both articulated a Christian vision for running their businesses that isn’t limited to the abortion issue.

Alito also made clear that the court’s ruling was limited to the contraceptive and abortifacient issue, and did not extend religious freedom protections to corporations on other issues. The court will have to address separately situations where a business denies services to gay clients for religious reasons.

Before the ruling, most for-profits had won injunctions, but after it even nonprofits began winning injunctions as a result. Christopher and Mary Ann Yep are the Catholic co-owners of Triune Health Group, a healthcare management company just outside of Chicago that objects to the mandate, and had won an injunction. The Yeps’ case is now pending before the 7th U.S. Circuit Court of Appeals.

“Our position is, based on Hobby Lobby, the case is over,” said the Yeps’ attorney, Kevin Edward White, who has represented them on behalf of the Chicago-based Thomas More Society. Mary Ann Yep was on the steps of the Supreme Court when the Hobby Lobby decision came out. “The joy and the happiness that was felt was, obviously, palpable,” she said.

Then on July 3, the court granted Wheaton College an emergency injunction and in a one-page order undid the current federal accommodation for nonprofits, which requires nonprofits to notify their insurance carrier that they object to the mandate and then requires the insurance carrier to arrange coverage. The court said Wheaton qualified for an injunction simply by notifying the government of its objection, rather than filing a form with its own insurer. Now the burden is on the government to figure out a way to provide coverage of the objectionable drugs to Wheaton employees.

The vote for the order was apparently 6-3, with support from liberal Justice Stephen Breyer, though it wasn’t officially published. Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor wrote a long dissent, unusual for a simple court order.

The dissent accurately explained the impact of the Wheaton order: “[B]ecause Wheaton is materially indistinguishable from other nonprofits that object to the government’s accommodation, the issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” wrote Sotomayor.

The dissenters thought the original accommodation for Wheaton and other nonprofits went far enough. Meanwhile, Justice Antonin Scalia merely joined the court’s “result,” meaning he agreed with issuing an injunction but did not agree on the legal reasoning behind it. He likely wanted a fuller exemption for Wheaton instead of the proposed accommodation.

Carl Esbeck, a religious freedom scholar and a professor at the University of Missouri School of Law, had suggested when the court announced Hobby Lobby it might be precisely the settlement reasonable plaintiffs could reach with reasonable White House lawyers: Objecting groups should notify the government of their objection, and then place the responsibility on the government to figure out contraceptive and abortifacient coverage. “It may sound like form over substance but it’s not,” he said. “It’s complicity with evil-doing if you’re notifying your carrier. But if the government tells you you have to do something, you have to tell the government you object. … At that point, it’s the government’s problem.” He made the important point that none of the insurance carriers are religious; they will provide the coverage for the drugs if the federal government tells them to. He thinks the plaintiffs’ lawyers and the White House lawyers should meet and agree on a RFRA right for plaintiffs along the lines of the Wheaton accommodation—something more substantial than a simple regulatory accommodation. Justice Anthony Kennedy, a deciding vote for Hobby Lobby, indicated in his concurring opinion that the accommodation route was sufficient religious protection to satisfy him.

—with reporting by Daniel James Devine