Female justices issue searing dissent over new contraceptive case

The fierce disagreements dividing the Supreme Court over this week’s Hobby Lobby decision were laid bare Thursday in a searing dissent from Justice Sonia Sotomayor, who said the justices’ decision in a separate contraceptive case “undermines confidence in this institution.” The dissent was signed by all three female justices. 

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor. “Not so today.”

The dissent was in an order to grant an emergency request from Wheaton College, an evangelical college in Illinois, on a temporary basis until its appeal goes forward. At issue is the “accommodation” the Obama administration worked out for religiously-identified non-profits: Sign a form certifying your objection, and the insurer will provide the coverage directly, without the objecting organization having to pay. As of now, 122 non-profits have sued, claiming that signing the opt-out form for someone to get contraception violates their religious liberty. (An attorney for the plaintiffs has repeatedly referred to it as a “permission slip for abortion,” even though it does not actually cover abortion.) 

In fact, that accommodation was one of the reasons Justice Samuel Alito cited to justify his Hobby Lobby decision — words Sotomayor threw back at him in the dissent. Under the Religious Freedom Restoration Act, the government has to show it has pursued the least restrictive means to accomplish its goal. Alito claimed that because the nonprofit accommodation exists, that means the government has other ways to get women access to contraception that respects religious liberty. Yet only a few days later, he ruled that the nonprofit accommodation — again, signing a form — is also a violation of religious liberty.

“Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” Sotomayor wrote. “But thinking one’s religious beliefs are substantially burdened … does not make it so.” She added, “Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are.” 

What the plaintiffs in the nonprofit cases are seeking is to be treated like churches — no contraception for anyone. But the majority claims that “nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” because the government already knows about their objection from the lawsuit and can tell the insurer itself. But without the form, Sotomayor argues, how could the administration “ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?”  

She added, “The Court’s actions in this case create unnecessary costs and layers of bureaucracy, and they ignore a simple truth: The Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.” 

Sotomayor also pointed out that the facts of the case hardly met the Court’s high standard for such an emergency injunction. The dissent was co-signed by Justice Ruth Bader Ginsburg and Justice Elena Kagan, but not Justice Stephen Breyer, who also dissented with them in Hobby Lobby.