When the Supreme Court decided Burwell v. Hobby Lobby on Monday, I was one of the few commentators who thought that it was a victory for women’s rights. The Court accommodated the company’s desire not to provide contraceptive insurance to its employees, but only because the government could easily, with a small adjustment to its regulations, guarantee the same coverage through other means. Five justices indicated that the state’s interest in providing such coverage was compelling—and that was a big deal, given how cavalierly some of the lower courts had treated that interest. If the new accommodation was made, Justice Samuel Alito noted in his majority opinion, the burden on the women involved “would be precisely zero.”
On Thursday, the Court abandoned its concern for those women. The Obama administration had accommodated nonprofit religious organizations, colleges, and hospitals on the condition that they fill out a form indicating their objection and send that form to their insurance company or administrator, which must then provide the medical services free of charge. Hobby Lobby required that the same accommodation be extended to religious for-profit employers. Some of the nonprofit organizations, including Wheaton College, objected that filing the form made them complicit in the provision of the contraceptives. The Court agreed, holding that the college need only file a letter with the federal government stating its objections.
Justice Sonia Sotomayor, dissenting with three other justices, explained that this is a disaster for the women affected:
Presumably the Court intends to leave to the agency the task of forwarding whatever notification it receives to the respective insurer or third party administrator. But the Court does not even require the religious nonprofit to identify its third-party administrator, and it neglects to explain how HHS is to identify that entity. Of course, HHS is aware of Wheaton’s third party administrator in this case. But what about other cases? Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating a database that tracks every employer’s insurer or third party administrator nationwide?
Justice Sotomayor also observed that even the Court’s required accommodation does not necessarily respond to the college’s complaint. “[W]hy wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage. Surely the Court and Wheaton are not just objecting to the use of one stamp instead of two in order to avail itself of the accommodation.”
The big mystery here is why justices Anthony Kennedy and Stephen Breyer did not agree with Sotomayor. Kennedy wrote in Hobby Lobby: “It is important to confirm that a premise of the Court's opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” That certainly seems like an affirmation of that interest. Kennedy also declared that “an accommodation may be made to the employers without imposition of a whole new program or burden on the Government. As the Court makes clear, this is not a case where it can be established that it is difficult to accommodate the government’s interest, and in fact the mechanism for doing so is already in place.” Breyer joined Justice Ruth Bader Ginsburg’s dissent. What are they thinking? Unlike Hobby Lobby, the claim of Wheaton College is not subject to an easy administrative fix. Yet the Court accepts it, and issues an emergency injunction upholding Wheaton’s claims, without even awaiting a trial on the merits.
Much of the reaction to Hobby Lobby was overwrought, suggesting that the Court had abandoned the needs of huge numbers of women. That was in fact what Hobby Lobby had asked for and what some lower courts did, but the Court’s opinion cleverly managed to avoid that result. The Wheaton case is different. This is really bad news.
Andrew Koppelman is the author of The Tough Luck Constitution and the Assault on Health Care Reform and Defending American Religious Neutrality.