High Court Favors Christian School on Contraception

Washington — The three female justices of the Supreme Court sharply rebuked their colleagues Thursday for siding with a Christian college in the latest battle over providing women with contraceptive coverage under the Affordable Care Act, saying the court was retreating from assurances offered only days ago.

In a short, unsigned opinion, the court said that Wheaton College in Illinois, at least temporarily, does not have to comply even with compromise provisions in the law that the college says still violate its religious beliefs.

Justice Sonia Sotomayor said the action cast doubt on the very accommodation the court’s majority seemed to endorse Monday in Burwell v. Hobby Lobby, which concerned businesses that objected to providing birth control that offends the owners’ beliefs.

“Those who are bound by our decisions usually believe they can take us at our word,” wrote Sotomayor, who was joined by Justices Ruth Bader Ginsburg and Elena Kagan. “Not so today.”

She said Thursday’s order “evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”

The strong language showed that the court’s decision Monday in Hobby Lobby was only the start of what will be a continuing battle over the requirement in the Affordable Care Act that employers provide female employees no-cost access to all birth control approved by the Food and Drug Administration.

After the Hobby Lobby decision, the court sent back for reconsideration by lower courts cases that involved companies whose owners say their religious beliefs do not allow them to offer any contraceptives.

The Wheaton College case is one of dozens that object to a compromise the Obama administration has offered to religious organizations, hospitals and colleges.

Under this arrangement, the groups are required to fill out a form, EBSA Form 700, to register their religious objections. This enables their insurers or third-party administrators to take on the responsibility of paying for the birth control. The organizations do not have to pay for the coverage, and the cost is borne by the government or in other ways.

But some of the colleges and groups say that signing the form authorizes the third parties to provide the contraceptive coverage, making them complicit in actions that offend their religious beliefs.

The ruling Thursday says Wheaton need only file a letter with the federal government stating the college’s religious objections. Presumably, the government then would notify the third party to provide the contraceptives. “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives,” the order said.

Sotomayor disagreed. She said the injunction “risks depriving hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.” And since the other cases around the country are indistinguishable, she said, the order might as well be national in scope.

It is not unusual for orders responding to an emergency request to be unsigned. Justice Antonin Scalia added one sentence saying he agreed with the result in the four-paragraph order, a sign he did not agree with its reasoning.

Justice Stephen Breyer, who dissented along with Ginsburg, Sotomayor and Kagan in the Hobby Lobby case, did not join their dissent to Thursday’s order.

Churches and other institutions whose mission is purely religious are exempt from the birth-control requirement under the health-care law.

The college was turned down by a district court in asking for an injunction while it challenged the requirements. The U.S. Court of Appeals for the 7th Circuit also turned down the college this week, basing its decision in part on the Hobby Lobby decision.