“Those who are bound by our decisions usually believe they can take us at our word. Not so today.” - ” Justice Sonia Sotomayor.
Associate Justices Elena Kagan and Ruth Bader Ginsburg joined Justice Sonia Sotomayor in a blistering dissent she wrote to the Supreme Court's decision to grant a temporary "religious exemption" to Wheaton College in Illinois.
Wheaton, which is an evangelical Christian school, was already exempt from the Affordable Care Act provision that mandates all health care policies offer contraception without a copay, by an accommodation offered by the Obama administration to overtly religious institutions. But the school objected to signing the administrative form that would allow their insurance provider to offer the coverage directly. According to MSNBC, the lawyer for Wheaton obnoxiously referred to this form in his argument as "a permission slip for abortion."
The Court voted 6-3 to allow Wheaton the exemption while the case is being appealed, with all of the male justices siding with Wheaton and all the female justices opposed. Justice Sotomayor was brutal in her critique of Wheaton's position writing:
“Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened … does not make it so.” She added, “Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are.”
Justice Sotomayor directly attacked the Court's hypocrisy and Justice Alito who wrote the dissent.
Under the Religious Freedom Restoration Act, the government must show it has pursued the least restrictive means to accomplish its goal - providing contraception coverage. In its Hobby Lobby decision, the Court said that because there was an accommodation available for religious institutions - signing the opt-out form - the government did have a less restrictive way of providing contraception coverage it could offer to Hobby Lobby.
However, in the Wheaton decision, Justice Alito, who wrote the majority opinion, did an about face and said requiring Wheaton to provide the very same form which gave Hobby Lobby its victory, violated Religious Freedom Restoration Act.
"After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court's precedents and undermines confidence in this institution."
Although Justice Breyer sided with the lady justices in their dissent of the Hobby Lobby decision, he did not join in the Wheaton dissent, giving way to the distressing optics of the six male justices ignoring their female members to dictate who will and who will not be allowed to control the reproductive health care of the women of America.
You can read Justice Sotomayor's dissent here.