Supreme Court Now Playing Cute PR Games With Hobby Lobby Decision


In Monday’s Hobby Lobby ruling, Justice Samuel Alito struck down a government requirement that employer-provided health insurance cover access to contraceptives. Among other things, Alito wrote that any requirement must be the “least restrictive” means for the government to achieve its goals, and the health insurance mandate clearly wasn’t:

HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”

The obvious implication here is that the court approves of this compromise rule. That is, requiring self-certification is a reasonable means of accomplishing the government’s goal without requiring organizations to directly fund access to contraceptives. Today, however, the court pulled the rug out from under anyone who actually took them at their word:

In Thursday’s order, the court granted Wheaton College, an evangelical Protestant liberal arts school west of Chicago, a temporary injunction allowing it to continue to not comply with the compromise rule….College officials refused even to sign a government form noting their religious objection, saying that to do so would allow the school’s insurance carrier to provide the coverage on its own.

….The unsigned order prompted a sharply worded dissent from the court’s three female members, Justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan.

“I disagree strongly with what the court has done,” Sotomayor wrote in a 16-page dissent. Noting that the court had praised the administration’s position on Monday but was allowing Wheaton to flout it on Thursday, she wrote, “those who are bound by our decisions usually believe they can take us at our word. Not so today.”

For the last few days, there’s been a broad argument about whether the Hobby Lobby ruling was a narrow one—as Alito himself insisted it was—or was merely an opening volley that opened the door to much broader rulings in the future. After Tuesday’s follow-up order—which expanded the original ruling to cover all contraceptives, not just those the plaintiffs considered abortifacients—and today’s order—which rejected a compromise that the original ruling praised—it sure seems like this argument has been settled. This is just the opening volley. We can expect much more aggressive follow-ups from this court in the future.

POSTSCRIPT: It’s worth noting that quite aside from whether you agree with the Hobby Lobby decision, this is shameful behavior from the conservatives on the court. As near as I can tell, they’re now playing PR games worthy of a seasoned politico, deliberately releasing a seemingly narrow opinion in order to generate a certain kind of coverage, and then following it up later in the sure knowledge that its “revisions” won’t get nearly as much attention.

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