Bench Memos

Clueless on Wheaton College Order

On Slate, Dahlia Lithwick and law professor Sonja West purport to explain the Court’s four-paragraph order granting Wheaton College an injunction, pending appeal, against the so-called HHS mandate “accommodation.”

To discern how utterly clueless Lithwick and West are, one need go no further than their assertion that the Court “said” that the accommodation was “unconstitutional.” This assertion is doubly wrong. First, as anyone paying attention ought to know, the Hobby Lobby ruling rests on the Religious Freedom Restoration Act, not on any provision of the Constitution, and there is nothing in the Court’s Wheaton order to suggest that the Court is relying on the Constitution. Second, the Court didn’t “say” that the accommodation is illegal. On the contrary, it explicitly states that its order “should not be construed as an expression of the Court’s views on the merits.”

Lithwick and West mindlessly embrace the contradictions that inhere in Justice Sotomayor’s Wheaton dissent. I’ll note just two further points here.

Like Ruth Marcus, Lithwick and West assert that the three dissenters “share a highly relevant personal characteristic: a uterus.” Unless they mean to contend that the dissenters are, literally, hysterical (or, as Marcus suggests, thinking with their uteruses), I don’t see how that characteristic is relevant to their legal reasoning.

Lithwick and West also wrongly contend that the Hobby Lobby majority concluded that the accommodation “was the narrowest way to achieve the government’s goals.” But the Hobby Lobby majority merely used the accommodation to show that the HHS mandate was not the narrowest way to achieve the government’s goals (or, more precisely, that the government had failed to make its necessary showing under RFRA that the HHS mandate was the least restrictive means). Nothing in that use suggests that the accommodation is itself the narrowest way, and, indeed, the majority observed that the government failed to show that direct governmental payment for the objected-to drugs and devices “is not a viable alternative.”

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