At issue is the "accommodation" the Obama administration worked out for religiously-identified non-profits: Sign a form certifying your objection, and the insurer will provide the coverage directly, without the objecting organization having to pay. As of now, 122 non-profits have sued, claiming that signing the opt-out form for someone to get contraception violates their religious liberty. (An attorney for the plaintiffs has repeatedly referred to it as a "permission slip for abortion," even though it does not actually cover abortion.) In fact, that accommodation was one of the reasons Justice Samuel Alito cited to justify his Hobby Lobby decision -- words [Justice Sonia Sotomayor] threw back at him in the dissent.
A week ago today, a narrow Supreme Court majority broke new legal ground, issuing a 5-4 ruling that said some corporations can restrict employees' access to birth control. And while that controversial decision generated considerable attention, what much of the country may not realize is that the same conservative justices quietly returned to their decision -- twice.
The first "clarification" came a day after the ruling -- which was intended to bring clarity to the law -- when the legal community was left wondering about the applicability of the Hobby Lobby decision. The chain store's lawsuit did not target all birth control, just the forms of contraception the corporation's owners found morally objectionable. Did the court's ruling apply to the contraception methods included in the litigation or everything, including regular ol' birth control pills?
On Tuesday, the Court said the ruling covered all 20 forms of contraception protected through the Affordable Care Act, despite the fact that Hobby Lobby's lawsuit only covered 4 of the 20. By what rationale did the conservative majority reach this expansive conclusion? I believe it's called the "because we said so" rule of American jurisprudence.
For proponents of reproductive rights and the separation of church and state, Tuesday's "clarification" simply added insult to injury. But on late Thursday, the Supreme Court returned to the same issue again, this time granting an emergency request from an evangelical school in Illinois called Wheaton College. Irin Camron explained:
The justices usually go out of their way to be respectful towards one another, but in this case, the conservatives were being so cavalier with the law, contradicting their own conclusions from literally a few days prior, that Sotomayor felt the need to call out the right's judicial recklessness in unusually strong terms.
"Those who are bound by our decisions usually believe they can take us at our word," Sotomayor wrote. "Not so today." She added that the conservatives' latest gambit is the sort of action that "undermines confidence in this institution."
Those are forceful accusations, which in this case, appear to be well grounded -- there can be little doubt that the Republican-appointed justices started with the answer they found ideologically satisfying, then worked backwards to find the rationale that made them happy. And then a few days later, when a related case posed a problem, these same justices simply flipped the whole thing upside down in order to once again advance a pre-determined agenda.
Even the most knee-jerk conservative should find this tough to defend. On Monday, Alito, speaking for the five-member conservative majority, said the ACA's contraception policy created a "substantial burden" on religious corporations and officials must rely on the "least restrictive" approach to achieving policymakers' goal. In this case, Alito said, the Obama administration already developed a compromise process through which a private entity "can self-certify that it opposes providing coverage for particular contraceptive services."
For everyone involved, this meant one thing: the Supreme Court's conservatives are comfortable with that compromise approach. After all, there was Alito touting it in his own Hobby Lobby ruling, clearly using the policy as an example of the government taking the "least restrictive" path towards its goal. The far-right jurist specifically said this policy "achieves all of the government's aims while providing greater respect for religious liberty."
That is, until Thursday, when Alito and his cohorts on the right apparently changed their mind about their own rationale, announcing that those who took their own legal reasoning at face value are wrong -- again, because the conservatives says so.
Keep in mind, Wheaton College is effectively raising a religious objection to paperwork. The school starts with the premise that the birth control methods they don't like are literally abortion -- all scientific evidence to the contrary notwithstanding -- and from there, Wheaton also says it, as a religiously affiliated non-profit, wants to exclude contraception from its coverage plan.
Fine, the Obama administration responds, just fill out some forms, letting insurers know about the moral objection.
No, Wheaton responded, filling out the forms about the moral objection is itself morally objectionable. Indeed, the school's administrators and lawyers went so far as to suggest filling out paperwork raising moral objections to birth control -- which, again, is abortion in their eyes -- is practically the same thing as endorsing the moral wrong itself. The college filed a federal case and on Thursday, the Supreme Court granted emergency relief -- an extremely rare event -- ensuring Wheaton won't have to do the paperwork, despite what the same court justices said on Monday.
As Dahlia Lithwick and Sonja West put it, "Overnight, the cure has become the disease. Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer."
What an embarrassment.