In a late-breaking order Thursday, the Supreme Court granted a Christian college a temporary exemption from the birth control mandate of the Affordable Care Act.
If this sounds familiar, it’s because it is. In January, the court issued a one-page order providing the same sort of relief to The Little Sisters of the Poor, a group of Catholic nuns.
But this time, the unsigned, provisional order drew a scathing 17-page dissent authored by Justice Sonia Sotomayor and joined by the court’s two other women, Justices Ruth Bader Ginsburg and Elena Kagan.
Remember, the dissent comes just days after the Supreme Court decided that ACA’s provisions for no-cost prescription contraception violate the religious liberties of some closely held companies.
The spat in this order is really about something very granular: The court decided that Wheaton College has to notify the government that it is a religious organization and is exempt from the contraception mandate, but the order says it need not use EBSA Form 700 to do so.
The form is supposed to be sent to both the government and the insurance company, which would then provide contraceptives free, using a government subsidy.
That idea — that the government could by proxy provide contraceptives — was an important element of why Justice Anthony Kennedy joined the majority ruling in favor of Hobby Lobby. Wheaton and The Little Sisters say signing that form makes them complicit in an action that goes against their religion.
In her dissent Thursday, Sotomayor says the court — by temporarily halting the EBSA Form 700 requirement — is already breaking the precedent it set in the Hobby Lobby case. This, Sotomayor writes, is the slippery slope the justices warned about in the dissenting opinion they wrote for Hobby Lobby.
“Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor writes. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.”