A…Misunderstanding…on the Supreme Court

The liberal wing of the Supreme Court is at it again. The three women of the wing are furthering their demand that women generally are entitled to get their contraceptives via OPM, rather than with the women’s own money—apparently, it seems, because these three female Justices think women generally are too helpless to have their own money. These three also are continuing their demand that access to contraceptives must take priority over the religious tenets of the ones they would require to make the provision.

Writing for the dissent to a Supreme Court order advising that Wheaton College, a Christian school in Illinois, need not continue to provide birth control coverage absent filing a form with its insurer asserting its religious objections, Justice Sonia Sotomayor wrote the following:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation [in Hobby Lobby to justify expanding exemptions from contraceptive coverage to closely held commercial businesses], the court now, as the dissent in Hobby Lobby feared it might, retreats from that position.

Of course, the Court’s opinion created no such reliance, as Justice Sotomayor knows full well. The “religious non-profit exemption” was one of a couple of possible alternatives proffered in the Court’s opinion that illustrated less restrictive means of facilitating women’s ability to obtain contraceptives. The Hobby Lobby ruling included this potential alternative in a part of its discussion of the requirement that a government-generated religious burden (or burden of any sort) be applied through the least restrictive means possible:

The least-restrictive-means standard is exceptionally demanding, see City of Boerne…and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. See §§2000bb–1(a), (b)(requiring the Government to “demonstrat[e] that application of [a substantial] burden to the person…is the least restrictive means of furthering [a] compelling governmental interest” (emphasis added)).

The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative.

That the opinion went on at greater length about the “religious non-profit exemption” in no way alters its status as one of at least two hypothetically offered alternatives for satisfying the (hypothetically accepted) government interest in providing contraception free to the user. There plainly is no basis to any claim that filing for a “religious non-profit exemption” is the sole means of being…excused…from providing religiously proscribed contraception.

Another aspect that makes the Wheaton matter interesting here, though, is the question of the form itself that Sotomayor insists that Wheaton should be bound to file in order to get that “religious non-profit exemption.”

As Wheaton correctly notes, it’s not who pays for the provision that’s at issue, it’s that Wheaton would be required to sanction the provision by still being required to have contraception coverage done in their name.

“Wheaton believes that authorizing its [insurance administrator] to provide these drugs in Wheaton’s place makes it complicit in grave moral evil,” the college said in its injunction application filed Sunday with the court. “Wheaton can neither provide the mandated coverage nor execute and deliver” forms that prompt others to do so.

This is clear enough to all but the Progressive who cannot distinguish the pecuniary from the moral.

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