Supreme Court Grants Wheaton College's Injunction against Contraception Mandate

Before the Supreme Court hung up the robes for Independence Day festivities, the Justices granted Wheaton College’s request for an injunction against the contraception mandate.  With the injunction order coming closely on the heels of the Court’s controversial decision in Burwell v Hobby Lobby, the Wheaton order, and its strong dissent, raises more questions about the status of the Affordable Healthcare Act’s contraception mandate and the effect of the Hobby Lobby decision.

Wheaton College Defies Process of Providing Contraceptive Insurance Coverage

Wheaton College, a small religious school in Illinois, filed its case in objection to the process required to obtain an exemption from the Affordable Care Act’s (ACA) contraception mandate because when an exemption is filed coverage for contraceptives is automatically picked up by a third party insurer.  Under the ACA, institutions that qualify for an exemption to the contraception mandate must fill out EBSA Form 700 and file it with the Office of Health and Human Services (HHS) so that insured parties may seek contraceptive coverage elsewhere. Wheaton claims that any part of the ACA’s contraception mandate, even the exemption paper work, unfairly burdens religious practices because every aspect of the process results in insured parties receiving contraceptive coverage.

By bypassing the official notice requirements under the ACA, Wheaton hopes that coverage of contraceptives will not kick to a third party insurer – meaning that employees and students of the school will not get contraception covered by any insurance plan because proper notice was not filed. Instead of the formal notice requirement, the college simply wrote a letter to the Government explaining that the school is exempt from providing contraception due to its religious values.  In the injunction order, the Supreme Court agreed that Wheaton College’s letter notifying HHS of its objection to contraceptives sufficiently exempts the school from covering contraceptives until the Court determines the merits of Wheaton’s claims, but did not grant the college its desired result of subverting third party contraceptive coverage.

Understanding the Wheaton College Injunction Order

The most important aspect of the Wheaton injunction order to keep in mind is that it is a temporary order put in place until the Court rules on the college’s challenge to the process of filing for an exemption to the contraception mandate.  In granting the injunction, the six Justices supporting the order noted that doing so has no bearing on the Court’s ultimate ruling on the merits of the case – the injunction simply grants temporary permission for Wheaton to be exempted from providing contraception despite the fact that the college did not use EBSA Form 700, but instead sent a letter informing HHS of its religious exemption to contraception coverage.

It is also worth noting that the Wheaton injunction order does not preclude the college’s employees or students from obtaining contraceptives without cost under third party insurance – in fact the order specifically states that the ACA’s requirement that a third party provide contraception is still in effect.  Although Wheaton is successful in temporarily exempting itself despite not following ACA procedures, the college did not undermine the process of employees and students from obtaining contraceptives under a third party insurance plan.

Dissent to Wheaton Injunction Claims Hobby Lobby Contradiction

The three female Justices dissented from the majority’s injunction, with Justice Sotomayer writing a 17-page argument against the decision which argues, in part, that the majority has already back-tracked on its Hobby Lobby ruling.  The Hobby Lobby decision set off a firestorm of criticism by holding that for-profit corporations are entitled to exemption from the ACA’s contraceptive mandate.  Hobby Lobby (summarized nicely in this blog at the Washington Post) held that the ACA’s contraception mandate was not the least restrictive means in advancing the government’s interests in providing contraception coverage and therefore a for-profit business could be exempt from it – a ruling that relied, in part, on the existence of a process which grants exemptions to certain religious organizations.

Justice Sotomayer argues in her Wheaton dissent that the Court is now undermining the process of accommodation, relied upon so heavily in Hobby Lobby, by acknowledging Wheaton College’s challenge to it – effectively calling into question the Court's argument in Hobby Lobby.  On closer reading it seems Justice Sotomayer, who was dissatisfied because the Court’s injunction order tacitly acknowledged Wheaton College may have a legitimate legal challenge to the contraception mandate, may be overreaching and making use the Wheaton injunction to further criticize the Hobby Lobby decision without sufficiently covering her legal bases.

Reviewing Wheaton through a Hobby Lobby Lens

As pointed out in Justice Ruth Bader Ginsburg’s dissent to the Hobby Lobby decision, the Court did not settle whether the accommodation process provided by the ACA is sufficient – it merely noted that the existence of any exemption to contraceptive coverage suggests that the ACA’s contraception mandate is not the least-restrictive means of accomplishing the government’s goal.  Further, the Wheaton injunction doesn’t settle anything, and even the strongest interpretation of the Court’s injunction will only lead to the conclusion that the Court's ultimate decision will allow organizations to provide any type of notice of exemption to contraceptive coverage, but doing so will not undermine the ACA’s requirement of contraception insurance from a third party insurer.

In part, Justice Sotomayer’s Wheaton dissent seems to be targeting the Hobby Lobby decision, and the members who support it, by over-exaggerating the implications of the temporary injunction without acknowledging that the Court can rely on the existence of an exemption to the contraception mandate as it did Hobby Lobby without fully endorsing the accommodation process as immune to legal challenge.  Wheaton is an interesting case in that it challenges the entire process of contraceptive insurance coverage, but it is unlikely that the decision will contradict, or alter, the landmark Hobby Lobby opinion issued a few days earlier.

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