Friday, July 4, 2014
Court Issues Order on Contraception Mandate that Reinforces Female Justices' Concerns About Hobby Lobby Ruling's Scope
The New York Times: Birth Control Order Deepens Divide Among Justices, by Adam Liptak:
In a decision that drew an unusually fierce dissent from the three female justices, the Supreme Court sided Thursday with religiously affiliated nonprofit groups in a clash between religious freedom and women’s rights.
The decision temporarily exempts a Christian college from part of the regulations that provide contraception coverage under the Affordable Care Act. . . .
The reason this order is so frustrating is that Justice Alito's opinion in Hobby Lobby emphasized that its ruling was justified in large measure because the accommodation already provided to certain non-profits could simply be extended to closely held for-profits. In relying on the existing accommodation, the Court implied that the accommodation was constitutionally acceptable. Indeed, the Court dismissed Justice Ginsburg's concerns about the opinion's scope, referring to the existing accommodation for non-profits and saying, "[O]ur holding is very specific." Justice Kennedy in concurrence even felt obliged to issue a separate reassurance: "[I]t should be said that the Court’s opinion does not have the breadth and sweep ascribed to it by the respectful and powerful dissent." Justice Kennedy pointed out that "there is an existing, recognized, workable, and already-implemented framework to provide coverage" and "[t]hat accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs" (emphasis added). The majority itself assured that the goverment's accommodation "does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion."
There was a clue, however, in the majority's opinion, that left Justice Ginsburg and others concerned as to whether the Court was sincere in suggesting it would ultimately find the existing accommodation adequate. The Court noted, "We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims," referring to Little Sisters of the Poor, a case in which the Court issued a previous order addressing the accommodation as applied to a non-profit entity. This caveat, buried in an opinion full of reassurances about the decision's narrow scope, coupled with today's order supports Justice Ginsburg's concern that the true implications of Hobby Lobby are broad and as yet unclear.