Yesterday, the Supreme Court granted Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.” Justices Ginsburg, Sotomayor, and Kagan dissented from the Court’s order. Justice Breyer evidently joined with the members of the Hobby Lobby majority in providing the relief. (If he had been unavailable, his nonparticipation would presumably have been noted.)
As the brief per curiam order makes clear, on the Obama administration’s account of the law, nothing in the Court’s order “affects the ability of [Wheaton’s] employees and students to obtain, without cost, the full range of FDA approved contraceptives.” After all, the government “contends that [Wheaton’s] health insurance issuer and third-party administrator are required by federal law to provide full contraceptive coverage regardless whether [Wheaton] completes EBSA Form 700.” (Form 700 is also sometimes referred to as the self-certification form.) Thus, on the government’s understanding, there is no reason for the government to require Wheaton to use the self-certification form. (The Court makes clear that it is not embracing the government’s understanding: “this order should not be construed as an expression of the Court’s views on the merits.”)
Justice Sotomayor’s dissent, joined by Justice Ginsburg and Kagan, is built on two contradictions:
1. Sotomayor contends that the Court “retreats” from its position in Hobby Lobby in which it “expressly rel[ied] on the availability of the religious-nonprofit accommodation.” But as the Ginsburg dissent in Hobby Lobby (which Sotomayor and Kagan joined) complained about, the Hobby Lobby majority expressly did not decide whether the accommodation satisfies RFRA. All it did was recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.
In short, it is Sotomayor, Ginsburg, and Kagan, in falsely contending that the majority “retreats” from its position in Hobby Lobby, who in fact contradict their position in that case. Contrary to Sotomayor’s rhetoric that the order “evinces disregard for even the newest of this Court’s precedents,” the order is fully compatible with Hobby Lobby. (Never mind the slippery claim that it’s the “newest” precedents rather than the oldest that most command respect.)
2. Like the government, Sotomayor prominently contends that “the provision of contraceptive coverage is triggered not by [Wheaton’s] completion of the self-certification form, but by federal law.” But she contradicts herself in text that she buries in two footnotes. In footnote 5, she calls the notice on the back of the self-certification form “merely [!] an instruction to third-party administrators.” By her sentence construction, she avoids acknowledging that the form would require Wheaton to make that instruction. And in footnote 6, she states that “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification.” (Emphasis added.)