Wheaton, however, along with many other religious not-for-profits, have long objected to this very workaround. They filed lawsuits claiming that the mere fact of signing a form
noting their religious objection to contraception coverage triggered third parties to provide the contraception, which triggered women to have access to morning-after pills and IUDs, which in their view were akin to abortions, and thus violated their religious consciences. Signing the form, they said, was the same as actually providing the contraceptives themselves. It’s the butterfly effect of contraception. Any time Wheaton flaps its religious-conscience wings, a woman somewhere ends up with an IUD, and Wheaton’s religious liberties are violated.
And Thursday night a majority of the court agreed. The order is a preliminary injunction. The court will need to decide this and dozens of similar cases in the future. The justices caution that this in no way reflects their views of the future cases. But for our purposes, let it be known that the very workaround the court gave to religious objectors only four days earlier now likely violates their religious liberty as well.
For the court to issue an emergency temporary injunction is a truly extraordinary act. Even more extraordinary was that justices filed a 16-page barnstorming dissent. And those dissenters share a highly relevant personal characteristic: a uterus. That’s correct, the three dissenting justices last night were the court’s three women: Justices Sonia Sotomayor, Ruth Bader Ginsburg, and Elena Kagan. In the event that the religious and gender rift at the court was not already painful to behold, the dissent, penned by Sotomayor, is a forceful and unwavering rejection of both the majority’s reasoning and tactics. “I disagree strongly with what the court has done,” Sotomayor wrote. “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 [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.”