On heels of Hobby Lobby, Supreme Court grants stay for religious college

Over the objection of three justices, the US Supreme Court on Thursday granted a request by a Christian college in Illinois to block any enforcement against the school for its noncompliance with the Affordable Care Act’s contraceptive mandate.

The action comes three days after the high court, in a 5-to-4 decision, ruled that the government could not force religious owners of Hobby Lobby and other closely-held, for-profit corporations to provide contraceptives that offend their religious faith to employees.

Instead, the majority justices said the government would have to offer an accommodation or an exemption for such companies. The court even suggested that the same accommodation being offered to Wheaton College might be an acceptable solution for Hobby Lobby.

Thursday's action by the court in granting the Wheaton injunction raises questions about that suggestion.

Unlike the for-profit corporations in Monday’s decision, Wheaton College is a religious nonprofit organization and thus already qualifies for a religious accommodation from the ACA requirement that employers provide female workers with cost-free access to contraceptives.

The school is among scores of nonprofit religious groups that object to providing all or some of the mandated contraceptives on grounds that they violate sincerely-held religious beliefs.

Faced with those objections, the Obama administration sought to accommodate the groups by providing a mechanism in which an objecting religious organization could notify its insurance providers, who would then take it upon themselves to provide the required contraceptive coverage.

In the government’s view, this would insulate the religious groups from involvement in provision of contraceptives.

But Wheaton College and other religious groups objected to that proposed accommodation, saying it still made them complicit in providing objectionable contraceptives to their employees. Specifically, they objected to having to sign a form that would then authorize their insurance carrier to provide the mandated contraceptive coverage.

Wheaton asked a federal judge to shield the college from potential fines of $95,000 a day or $35 million a year for noncompliance with the mandate. The judge refused. A federal appeals court also refused to block enforcement of the mandate.

On Monday, shortly after the Supreme Court issued its decision in the Hobby Lobby case, lawyers for Wheaton College asked the justices to take action in their own case.

In an unsigned two-page order released Thursday, the Supreme Court said the college did not have to comply with the precise terms of the government’s accommodation. Instead, it would suffice if the college simply notified the Department of Health and Human Services that it had religious objections to the contraception mandate.

The high court’s order suggests that, at that point, it will be up to the government to notify any relevant insurance providers.

The order blocks enforcement of the ACA mandate pending final disposition of all appeals in the Wheaton case.

It also notes: “This order should not be construed as an expression of the Court’s views on the merits.”

Justice Sonia Sotomayor filed a 15-page dissent joined by Justices Ruth Bader Ginsburg and Elena Kagan. She said Wheaton had failed to state a viable claim since the provision of contraceptive coverage is triggered by federal law, not by Wheaton’s required completion of a certification form.

Justice Sotomayor also brought up the majority opinion earlier this week in the Hobby Lobby case. It announced that the accommodation for religious nonprofit groups “constitutes an alternative that achieves all the government’s aims while providing greater respect for religious liberty,” she said, quoting the majority opinion from Monday. 

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

Sotomayor added: “After expressly relying on the availability of the religious-nonprofit accommodation … the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”

In his brief to the court, Wheaton’s lawyer, Mark Rienzi of the Beckett Fund for Religious Liberty, cited a similar injunction that had been granted earlier this year by the Supreme Court in a case involving a Denver-based order of Catholic nuns, the Little Sisters of the Poor.

Mr. Rienzi said that, like the Little Sisters of the Poor, Wheaton objected to signing the government’s required authorization “because it believes, as a religious matter, that signing the form would be impermissibly facilitating abortions and is therefore forbidden.”

The lawyer said that, despite government claims that the form was insignificant, it plays a central role in the government’s system. “Why else would the government fight to the Supreme Court to make the Little Sisters and Wheaton sign it?” he asked.

He noted that there is no dispute over whether Wheaton sincerely objects to signing the form. “It is for Wheaton – not HHS – to judge the religious limits on Wheaton’s own conduct,” Rienzi said.

“There is no valid reason for the government to be permitted to crush Wheaton with fines, or to force it to violate the shared faith of its community,” Rienzi said.

The case is Wheaton College v. Sylvia Burwell (13A1284).