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Jul 9, 2014

The Hobby Lobby decision is already being felt in other cases

ABSTRACT: The U.S. Supreme Court handed down its Hobby Lobby decision on June 30 and it is already having a ripple effect. On July 3rd, the Court issued an injunction on a case pending in the lower Federal Courts simplifying the paperwork needed to claim a religious exemption under the Hobby Lobby decision.  The female members of the Court issued a dissent to the order.

The Supreme Court majority is wasting little time in granting relief to organizations holding religious objections to aspects of the Affordable Care Act.

In light of the Hobby Lobby decision, Wheaton College, a religious, not-for-profit liberal arts college, (Hobby Lobby, by comparison was forprofit) obtained an injunction from the Supreme Court limiting the nature and extent of the notice Wheaton needed to give to the government in order to opt out of the employer-paid, mandatory contraceptive coverage specified by the Affordable Care Act. Wheaton College v. Burwell, (No. 13A1284).

According to the one and a half-page Order, Wheaton need only notify the Secretary of Health and Human Services (HHS) in writing that it holds itself out as religious and has religious objections to providing coverage for contraceptive services but need not do so on the Government-prescribed form (EBSA Form 700) and need not send copies to health insurance issuers or third-party administrators. The Court was quick to add that this was not a decision on the merits and was only in effect pending a final decision.

Reacting at length to the Court’s concise order, Justice Sotomayor, joined by Justices Ginsburg and Kagan, issued a 17-page dissent. The female justices accused the Majority of expanding the scope of the Hobby Lobby holding, one week after the Majority had described their decision as a limited one.

Further complicating the subject, there is another order, issued back on January 24, 2014, apparently without dissent, which is very similar to the Wheaton College order, but which, depending upon which group of justices is describing, is very different from or very similar in impact to the Hobby Lobby decision. (See, Little Sisters of the Poor v. Sebelius, 571 U.S. _____ (2014)

Under regulations promulgated by HHS before the Hobby Lobby decision, religious not-for-profit organizations could, if based on religious beliefs, avoid bearing the cost of some or all otherwise required contraceptive services in their insurance coverage by certifying their religious status on an EBSA Form 700 and notifying their insurance carriers of their objections.

So far, the only constants in these three decisions have been that each organization has had undisputed, genuine, religious objections to some or all contraceptive coverage and that none have been publicly traded, for-profit corporations.