Supreme Court Men Waited Three Days to Undermine Contraceptive Mandate

For those of you who missed it—it was timed to be missed—late this past Thursday afternoon, while America was already drunk on vodka-infused watermelon, the Supreme Court quietly granted an injunction to Wheaton College, a Christian liberal arts college, temporarily allowing it to avoid the Affordable Care Act's contraceptive mandate.

Unlike Hobby Lobby, the crafts chain that had wanted out of the contraceptive mandate for religious reasons, Wheaton is an honest-to-god religious non-profit. This means that it already could get out from under the mandate quite easily. The ACA makes an exception for religious non-profits; an entity like Wheaton simply has to file a form with the federal government declaring that it objects to the mandate. At that point, the government steps in and covers the birth control portion of the non-profit's health care coverage.

But Wheaton maintains that even the act of filing that form violates its religious convictions. It filed for the injunction pending a court challenge of the procedure. The argument runs something like this: The moment the college files that form, contraceptive coverage for its employees will follow. And the college's religious conscience will be irrevocably tarnished by this deceptively bureaucratic acquiescence to the slaughter of babies. (OK, that last is my gloss.)

The men on the Supreme Court all granted the injunction, agreeing that whether the courts ultimately supported Wheaton or not, the burden was theoretically serious enough that the college should not have to bear it in the meantime.

The women dissented, with Sotomayor's name on the opinion. She is, as the cliché has it, blistering. She writes that the majority's grant "undermines confidence in this institution." Because three days before, the Court had issued that Hobby Lobby decision you might have heard about, and in it:

... the Court described the accommodation as "a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all [Food and Drug Administration (FDA)]-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage." And the Court concluded that the accommodation "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty." Those who are bound by our decisions usually believe they can take us at our word. Not so today.

To recap: On Monday, to allow Hobby Lobby the win, the Court seemed to endorese the religious non-profit exemption, holding it up as proof that its holding was too narrow to genuinely endanger anyone's access to contraception. It was wielded in countless op-eds and blog posts as proof that it was possible to find a workable compromise between an institution's religious beliefs and the government's provision of health services.

And then, on Thursday, that same exception was possibly an excessive burden on the anti-contraceptive conscience of Wheaton College.

This sort of reversal of logic, Sotomayor writes, is exactly what Justice Ginsburg wrote in her Hobby Lobby dissent that she feared would happen.

All weekend people came up with quibbles with the press characterization of Sotomayor's opinion. The most common refrain from law professors was "this is just a grant of an injunction, not a decision on the merits of the issue." True, but it skirts the fact that you're supposed to lightly consider the merits in granting an injunction. So the Court granting the injunction means they think Wheaton's got a fighting chance.

The upshot is still that, just as a lot of people warned, Hobby Lobby was not just a little blip of an opinion. It was really the first domino. Which we sort of already knew, because as Dahlia Lithwick and Sonja West point out at Slate, the Court had already been kicking back a bunch of contraceptive mandate cases to lower courts asking that they reconsider them in light of the Hobby Lobby opinion.

It's all very depressing. I don't want to live in a world where Men Are From Mars, Women Are From Venus, is a viable frame for the analysis of Supreme Court opinions. Yet here we are. The men think Wheaton College is making a reasonable argument, and the women do not, and the reason they come to such different conclusions is that they clearly see the nature of the interests at stake differently. And the reason that the men prevailed is that simply, there are more of them, and there always have been, on the Supreme Court.

[Image of Sonia Sotomayor blowing a kiss via Getty.]