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Birth control injunction for religious college draws dissent from female justices

July 4, 2014 at 6:17 PM EST
The Supreme Court temporarily exempted a religious college from the contraception coverage provisions of the Affordable Care Act. The decision, which comes just days after a ruling in favor of some businesses objecting to provide birth control, has provoked sharp rebuke from the court’s three female justices. Judy Woodruff gets the details from Marcia Coyle of The National Law Journal.
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JUDY WOODRUFF: The U.S. Supreme Court late on Thursday temporarily exempted a religious college from the contraception coverage provisions of the Affordable Care Act. The decision provoked a sharp rebuke from the court’s three female justices. The injunction came down just days after a contentious 5-4 ruling in favor of some businesses that objected to providing birth control on the grounds that it offended the owners’ beliefs.

For more, we are joined by Marcia Coyle of “The National Law Journal.”

Marcia, thank you for coming in on the Fourth of July.

MARCIA COYLE, The National Law Journal: Oh, that’s just fine, Judy. Happy to be here.

JUDY WOODRUFF: So, interesting, in that this is a — this is an opinion written in about a page or a page-and-a-half. The dissent is 15 or 16 pages long.

MARCIA COYLE: Yes.

JUDY WOODRUFF: But tell us the background.

MARCIA COYLE: OK.

JUDY WOODRUFF: What is it that the — Wheaton College was complaining about?

MARCIA COYLE: Well, first, you have to start with what the court said Monday in the Hobby Lobby case.

There, a 5-4 majority ruled that the contraceptive insurance requirement violated the Religious Freedom Restoration Act, as applied to closely held corporations and their religious owners.

In that majority opinion, the court said the real — the problem with what the government did here was that it didn’t choose the least restrictive means of providing that coverage to women who need it. The court suggested less restrictive alternatives to doing this.

For example, the government could pay for the coverage itself or the government could extend an accommodation that it gives to religious nonprofit organizations. That accommodation says, if you sign a government form saying you object, the law then shifts the burden of providing the insurance to the insurer or a third-party administrator.

That accommodation is what was at the heart of what Wheaton College was objecting to in the U.S. Supreme Court this week.

JUDY WOODRUFF: This is a Christian college.

MARCIA COYLE: In Illinois.

JUDY WOODRUFF: Based in Illinois. And, now, this is a college. It is not a corporation.

MARCIA COYLE: Yes.

JUDY WOODRUFF: Unlike the one on which the Monday case was based. But they are saying, we are entitled to an exemption.

MARCIA COYLE: Well, they are.

In fact, no one really objects. They are eligible for this accommodation. But they are claiming that the accommodation itself, the signing of the government form, makes them complicit in providing the contraception coverage. And that, they say, violates the Religious Freedom Restoration Act.

And so they are asking the Supreme Court for an emergency injunction that would prevent the government from fining them if they didn’t comply with the requirement — or would prevent the government from insisting on the accommodation or being fined for not providing the coverage.

JUDY WOODRUFF: And there is this form that this is about.

MARCIA COYLE: Yes.

JUDY WOODRUFF: Justice Sonia Sotomayor, in her dissent, used very strong language about what the majority had held.

MARCIA COYLE: She did. She really made three points.

First, she said the court was retreating from what it said in Hobby Lobby, the Monday decision. In that decision, the majority again said that the accommodation itself achieved all of the government’s objectives here, as well as provided greater respect for religious liberty. And Justice Kennedy even reemphasized that in a separate concurring opinion. He said that treated undermined confidence in the court.

The second thing she said was, Wheaton College had not made out the case for getting an emergency injunction, which is an extraordinary remedy, and that one of the requirements is that your legal rights be indisputably clear. And that wasn’t the case here, because the lower courts had yet to rule on the merits of Wheaton’s claim.

And, finally, she argued, the court by telling Wheaton College all it had to do was submit to the government in writing its objections, not sign the form, the court itself was rewriting federal regulations, and it could not do that.

JUDY WOODRUFF: So, how significant, Marcia, that you have — of the four so-called liberal justices on the court, the three who are women are the ones who took part in this dissent?

MARCIA COYLE: Well, I think the three women made it very clear what their feelings were on Monday in the Hobby Lobby decision, so I am not surprised that they wrote here.

But they were reemphasizing what Justice Ginsburg said Monday in her dissent, that Hobby Lobby wasn’t a narrow decision. So Justice Sotomayor said now the government will probably — could possibly be receiving thousands of notices in writing from religious organizations, claiming that the accommodation violates the Religious Freedom Restoration Act.

JUDY WOODRUFF: And is that a real possibility?

MARCIA COYLE: Oh, yes, definitely.

There are dozens of lawsuits right now in the lower courts by nonprofit religious organizations claiming that the accommodation violates that federal law.

JUDY WOODRUFF: So, we will watch and see what happens.

MARCIA COYLE: It is definitely going to play out, and it surely is going to get to the Supreme Court on the merits eventually.

JUDY WOODRUFF: Marcia Coyle, we thank you very much.

MARCIA COYLE: My pleasure, Judy.