Nonprofits win contraceptive mandate reprieve

Right before the July 4 holiday weekend, the U.S. Supreme Court issued a significant order that escaped much notice: It granted Wheaton College, the best known evangelical Christian university, an emergency injunction against the contraceptive mandate. Injunctions from the Supreme Court are quite rare, and this injunction established a pattern for all other nonprofits seeking injunctions while their cases are pending. Justice Sonia Sotomayor in a dissent called the order “as rare as it is extreme.”

The order answered some questions that hung in the air about the fate of nonprofits after the court’s June 30 ruling in favor of for-profits, like Hobby Lobby, that object to the mandate. The reasoning in the Hobby Lobby v. Burwell ruling made lawyers for nonprofits nervous because the ruling relied on the current accommodation offered to objecting nonprofits to show the government had a workable alternative it could offer objecting for-profits. But the opinion emphasized that even though the court saw the nonprofit accommodation as a better alternative than nothing, the court was not giving the nonprofit accommodation its stamp of approval. With its recent injunction for Wheaton, the court underlined that the constitutionality of the nonprofit accommodation is an open question.

Currently the federal government offers religious nonprofits who object to the contraceptive mandate a complex accommodation, different from the full exemption from the mandate that churches receive. A nonprofit must sign a form certifying to its insurance company that it objects to the mandate, a form that authorizes its insurance company or a third party administrator to provide the contraceptives and abortifacients to employees ostensibly without using the nonprofit’s money. The certification is more complicated when an organization is self-insured, as many are. Nonprofit plaintiffs object to the accommodation, saying they are culpable by signing the form authorizing contraceptive coverage. Wheaton’s insurance covers all contraceptives except Plan B and Ella, which it believes can act as abortifacients. A federal district court and the 7th U.S. Circuit Court of Appeals both denied an injunction to Wheaton, pending a ruling on the merits of the case.

Then on July 3, the Supreme Court stepped in with its startling order, saying that Wheaton qualified for an injunction simply by filing its lawsuit, which served as a notification to the federal government that it objected to the mandate.

“The applicant has already notified the government—without using EBSA Form 700 [the certification form]—that it meets the requirements for exemption from the contraceptive requirement on religious grounds,” the court wrote. “Nothing in this order precludes the government from relying on this notice to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the act.”

In other words, the court created a middle ground accommodation: Wheaton does not have to sign the objectionable form and can have an exemption from the mandate, but the government has the freedom to try to provide Plan B and Ella to Wheaton employees on its own. The court said the order should not be read as a ruling on the merits of Wheaton’s case, but the order indicated a potential solution for all the other nonprofit cases.

It’s not clear how most plaintiffs will react to this middle ground accommodation. It isn’t a full exemption, but it also puts the burden of arranging contraceptive coverage on the government instead of the nonprofit. Wheaton, for its part, celebrated the injunction. But several of the major law firms representing nonprofits did not return requests for more detailed comments on the Wheaton order. The Becket Fund for Religious Liberty declined my interview request with an attorney, pointing me instead to its press release. “The injunction is good news for our clients,” said Greg Scott, spokesman for Alliance Defending Freedom, which represents a number of nonprofits challenging the mandate. Jones Day, the firm handling most of the Catholic nonprofit cases, could not be reached. Normally, the firms are eager for interviews. One explanation is many staff and lawyers are on vacation. Another is that the firms aren’t sure what posture to take toward the court’s new proposal.

Typically Supreme Court orders are issued without comment, but this one was important enough to elicit a 15-page dissent from Sotomayor, which Justices Ruth Bader Ginsburg and Elena Kagan joined. Sotomayor recognized the importance of what the majority of the court had done.

“[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,” she wrote in a footnote.

The dissenters argued that the current nonprofit accommodation should be sufficient religious freedom protection. Sotomayor called the form authorizing contraceptive coverage “minimally burdensome.”

Sotomayor herself handled a Supreme Court injunction back in January on behalf of Little Sisters of the Poor, another nonprofit objecting to the mandate. She submitted the Little Sisters appeal to the court and the court issued an order granting an injunction without any dissents. Seven months later in her dissent from Wheaton’s order, Sotomayor said Wheaton’s case was “crucially unlike” Little Sisters for technical reasons, because the two nonprofits have different types of insurers. But the Little Sisters order, though shorter and less detailed, was almost a carbon copy of the Wheaton order. Little Sisters was required only to inform the government of its objection, and it received an injunction. With two rare orders establishing this route for nonprofits, we have what journalists call a trend.

Lower courts will move forward to decide the merits of these cases, but now Wheaton and Little Sisters have the protection of an injunction.