Last week, the Supreme Court decided that closely-held corporations had religious rights under the Religious Freedom Restoration Act ("RFRA"), which were violated by the contraception mandate in the Affordable Care Act ("ACA"), in the much-publicized Hobby Lobby decision. In reaching that decision, the Court noted that filing a Form 700 accommodation "constitutes an alternative that achieves all of the Government's aims while providing greater respect for religious liberty."
Yet, days later, the same Court granted an emergency injunction of a non-profit Illinois college contesting the Form 700 accommodation, which according to them -- the solitary act of filling out a form -- violates their religious liberties.
The Form 700 Actions
The Form 700 accommodation provides an "out" for religious nonprofits that don't want to comply with the contraception mandate. Nonprofits simply need to fill out a Form 700 which states their objection to the contraception mandate, and the form is given to the insurance carriers or third party administrators, who in turn will provide the mandatory contraceptive coverage required by the ACA. The cases of non-profits contesting the Form 700 procedure are surging, and we already seeing a circuit split.
Wheaton College Grant
On June 30, the Seventh Circuit denied Wheaton's application of injunction on the basis of its previous decision in Notre Dame v. Sebelius, and on the same day, the Court granted a temporary injunction. Three days later, on July 3, in an anonymous, short order, the Supreme Court granted Wheaton's application for injunction, and held that the college only had to (1) inform the Secretary of Health and Human Services that it is a religious nonprofit organization, in writing, and (2) that it "has religious objections to providing coverage for contraceptive services." The Court held that this would be sufficient notice for the time, and that the decision was not a reflection of the merits of the case. Justice Scalia "concur[red] in the result."
Wheaton College Dissent
Justice Sotomayor authored a dissent, joined by Justices Ginsburg and Kagan, where she stated: "Those who are bound by our decisions usually believe they can take us at our word. Not so today." It's interesting to note, that Justice Sotomayor granted an application for injunction made by Little Sisters of the Poor v. Sebelius, in its Form 700 challenge. In that order, she wrote that Little Sisters did not need to fill out Form 700, and need only provide in writing the same requirements set forth in the Wheaton order. So why the change of heart?
Justice Sotomayor addresses Little Sisters in Footnote 6 where she states that Wheaton College is "crucially unlike" the Little Sisters case. She noted that Little Sisters involved a church plan "that had no legal obligation or intention to provide contraceptive coverage." Instead, Wheaton will "affect any individual's access to contraceptive coverage ... [because] Wheaton's third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification."
The Court noted the division in the circuit courts and we can be sure that this is definitely not the last we'll hear of the Form 700 accommodation. We're betting the Court will hear this case, or one like it, on the merits, very soon.