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Justice Sotomayor: “Those who are bound by our decisions usually believe they can take us at our word. Not so today.”

Screen Shot 2014-07-03 at 11.38.52 PM Under the Affordable Care Act, a religious organization employer that wishes to be exempt from the requirement to provide contraceptives need only fill out a form that notifies the government and the insurer that they are not going to pay for contraceptives, so the insurer can ensure that employees get such coverage. The form is very simple. It is reproduced above. Wheaton College objected to this procedure.  It filed suit under RFRA and alleged that the requirement to fill out this form was an unfair burden on their exercise of religion, because it would implicate them in an employee obtaining contraceptives.  They sought an injunction during the litigation, which the district court and then the Seventh Circuit denied Getting an injunction against enforcement of a federal statute pending appeal requires that the right asserted be clear.  The district court and the circuit court thought not. Today, the United States Supreme Court granted a stay pending appeal.  The order and dissenting opinion is here.  Lyle Denniston wrote about it at SCOTUS Blog. Justice Sotomayor, joined by Ginsburg and Kagan, wrote a vigorous dissent, focusing, first, on the degree to which this result seems to suggest that we were all being mislead by the language in the majority opinion in Hobby Lobby asserting that the holding was a narrow one.   Justice Sotomayor writes:

Wheaton nonetheless asserts that the exemption itself impermissibly bur- dens Wheaton’s free exercise of its religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory that its filing of a self-certification form will make it com- plicit in the provision of contraceptives by triggering the obligation for someone else to provide the services to which it objects. Wheaton has not stated a viable claim under RFRA. Its claim ignores that the provision of con- traceptive coverage is triggered not by its completion of the self-certification form, but by federal law. Even assuming that the accommodation somehow bur- dens Wheaton’s religious exercise, the accommodation is permissible under RFRA because it is the least restrictive means of furthering the Government’s compelling interests in public health and women’s well-being.  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.” Ibid. 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 to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, see ante, at 29–30 (GINSBURG, J., dissenting), retreats from that position.   That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

Justice Sotomayor also notes that this form of relief is and should be extraordinarily rare:

Even if one accepts Wheaton’s view that the self- certification procedure violates RFRA, that would not justify the Court’s action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction under the All Writs Act, 28 U. S. C. §1651, blocking the operation of a duly enacted law and regulations, in a case in which the courts below have not yet adjudicated the merits of the applicant’s claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where “the legal rights at issue are indisputably clear.” Turner Broadcasting System, Inc. v. FCC, 507 U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers) (internal quotation marks omitted).

I was dubious about the assertions in the Hobby Lobby opinion that the holding was a narrow one, and expected at some time in the near future, the narrowing language would drop away.  But after the order list yesterday, and this order today, I’ll have to say I’m surprised that the narrowing language didn’t last a week.

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