throbber
1
`
`Cite as: 573 U. S. ____ (2014)
`
`
`SOTOMAYOR, J., dissenting
` Order in Pending Case
`
`SUPREME COURT OF THE UNITED STATES
`
`_________________
`
` No. 13A1284
`_________________
`
` WHEATON COLLEGE v. SYLVIA BURWELL,
`
` SECRETARY OF HEALTH AND HUMAN
`
`
`SERVICES, ET AL.
`
`
`
`ON APPLICATION FOR INJUNCTION
`[July 3, 2014]
`The application for an injunction having been submitted
`
`to JUSTICE KAGAN and by her referred to the Court, the
`Court orders: If the applicant informs the Secretary of
`
`Health and Human Services in writing that it is a non-
`
`profit organization that holds itself out as religious and
`has religious objections to providing coverage for contra-
`ceptive services, the respondents are enjoined from enforc-
`ing against the applicant the challenged provisions of the
`Patient Protection and Affordable Care Act and related
`
`regulations pending final disposition of appellate review.
`To meet the condition for injunction pending appeal, the
`applicant need not use the form prescribed by the Gov-
`ernment, EBSA Form 700, and need not send copies to
`health insurance issuers or third-party administrators.
`The Circuit Courts have divided on whether to enjoin
`
`the requirement that religious nonprofit organizations use
`EBSA Form 700. Such division is a traditional ground for
`certiorari. See S. Ct. Rule 10(a).
`
`Nothing in this interim order affects the ability of the
`
`applicant’s employees and students to obtain, without cost,
`the full range of FDA approved contraceptives. The Gov-
`ernment contends that the applicant’s health insurance
`issuer and third-party administrator are required by
`federal law to provide full contraceptive coverage regard-
`less whether the applicant completes EBSA Form 700.
`
`
`
`
`
`
`
`

`
`2
`
`
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`The applicant contends, by contrast, that the obligations of
`its health insurance issuer and third-party administrator
`are dependent on their receipt of notice that the applicant
`objects to the contraceptive coverage requirement. But
`the applicant has already notified the Government—
`without using EBSA Form 700—that it meets the re-
`quirements for exemption from the contraceptive coverage
`requirement on religious grounds. Nothing in this order
`precludes the Government from relying on this notice, to
`the extent it considers it necessary, to facilitate the provi-
`sion of full contraceptive coverage under the Act.
`
`In light of the foregoing, this order should not be con-
`
`strued as an expression of the Court’s views on the merits.
`JUSTICE SCALIA concurs in the result.
` JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
`
`and JUSTICE KAGAN join, dissenting.
`
`The Patient Protection and Affordable Care Act, 124
`
`Stat. 119, through its implementing regulations, requires
`employer group health insurance plans to cover contracep-
`tive services without cost sharing. Recognizing that peo-
`ple of religious faith may sincerely oppose the provision of
`contraceptives, the Government has created certain excep-
`tions to this requirement. Churches are categorically
`exempt. Any religious nonprofit is also exempt, as long as
`it signs a form certifying that it is a religious nonprofit
`that objects to the provision of contraceptive services, and
`provides a copy of that form to its insurance issuer or
`third-party administrator. The form is simple. The front
`asks the applicant to attest to the foregoing representa-
`tions; the back notifies third-party administrators of their
`
`regulatory obligations.
`
`The matter before us is an application for an emergency
`
`injunction filed by Wheaton College, a nonprofit liberal
`arts college in Illinois. There is no dispute that Wheaton
`is entitled to the religious-nonprofit exemption from the
`
`
`
`
`
`

`
`3
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`contraceptive coverage requirement. Wheaton nonethe-
`less asserts that the exemption itself impermissibly bur-
`dens Wheaton’s free exercise of its religion in violation of
`the Religious Freedom Restoration Act of 1993 (RFRA),
`107 Stat. 1488, 42 U. S. C. §2000bb et seq., on the theory
`that its filing of a self-certification form will make it com-
`
`plicit in the provision of contraceptives by triggering the
`obligation for someone else to provide the services to
`
`
`which it objects. Wheaton has not stated a viable claim
`under RFRA. Its claim ignores that the provision of con-
`traceptive coverage is triggered not by its completion of
`the self-certification form, but by federal law.
`
`Even assuming that the accommodation somehow bur-
`dens Wheaton’s religious exercise, the accommodation is
`permissible under RFRA because it is the least restrictive
`means of furthering the Government’s compelling inter-
`ests in public health and women’s well-being. Indeed, just
`earlier this week in Burwell v. Hobby Lobby Stores, Inc.,
`
`ante, at ___, the Court described the accommodation as “a
`system that seeks to respect the religious liberty of reli-
`gious nonprofit corporations while ensuring that the em-
`ployees of these entities have precisely the same access to
`all [Food and Drug Administration (FDA)]-approved con-
`traceptives as employees of companies whose owners have
`
`no religious objections to providing such coverage.” Ante,
`at 3. And the Court concluded that the accommodation
`“constitutes an alternative that achieves all of the Gov-
`
`ernment’s aims while providing greater respect for reli-
`
`gious liberty.” Ibid. Those who are bound by our decisions
`usually believe they can take us at our word. Not so to-
`day. After expressly relying on the availability of the
`religious-nonprofit accommodation to hold that the contra-
`ceptive coverage requirement violates RFRA as applied to
`closely held for-profit corporations, the Court now, as the
`dissent in Hobby Lobby feared it might, see ante, at 29–30
`(GINSBURG, J., dissenting), retreats from that position.
`
`
`
`
`
`
`
`

`
`
`
`4
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`That action evinces disregard for even the newest of this
`Court’s precedents and undermines confidence in this
`institution.
`Even if one accepts Wheaton’s view that the self-
`
`certification procedure violates RFRA, that would not
`justify the Court’s action today. The Court grants
`Wheaton a form of relief as rare as it is extreme: an inter-
`locutory injunction under the All Writs Act, 28 U. S. C.
`§1651, blocking the operation of a duly enacted law and
`regulations, in a case in which the courts below have not
`yet adjudicated the merits of the applicant’s claims and in
`which those courts have declined requests for similar
`
`Injunctions of this nature are proper
`injunctive relief.
`only where “the legal rights at issue are indisputably
`clear.” Turner Broadcasting System, Inc. v. FCC, 507
`
`U. S. 1301, 1303 (1993) (Rehnquist, C. J., in chambers)
`(internal quotation marks omitted). Yet the Court today
`orders this extraordinary relief even though no one could
`credibly claim Wheaton’s right to relief is indisputably
`clear.
`The sincerity of Wheaton’s deeply held religious beliefs
`
`is beyond refute. But as a legal matter, Wheaton’s appli-
`cation comes nowhere near the high bar necessary to
`warrant an emergency injunction from this Court. For
`that reason, I respectfully dissent.
`I
`
`A
`
`
`The Affordable Care Act requires certain employer
`group health insurance plans to cover a number of preven-
`tative-health services without cost sharing. These services
`include “[a]ll Food and Drug Administration . . . approved
`contraceptive methods, sterilization procedures, and pa-
`tient education and counseling for all women with repro-
`ductive capacity, as prescribed by a provider.” 77 Fed.
`Reg. 8725 (2012) (brackets and internal quotation marks
`
`
`
`
`
`
`
`

`
`
`
`5
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`omitted). As a practical matter, the provision ensures that
`
`women have access to contraception at no cost beyond
`their insurance premiums. Employers that do not comply
`with the mandate are subject to civil penalties.
`Recognizing that some religions disapprove of contra-
`
`ceptives, the Government has sought to implement the
`mandate in a manner consistent with the freedom of
`conscience.
`It has categorically exempted any group
`health plan of a “religious employer,” as defined by refer-
`ence to the Tax Code provision governing churches. See
`45 CFR §147.131(a); http://hrsa.gov/womensguidelines (as
`visited July 2, 2014, and available in Clerk of Court’s case
`file). And it has extended a further accommodation to
`religious nonprofits that do not satisfy the categorical
`exemption. All agree that Wheaton qualifies as a religious
`nonprofit.
`To invoke the accommodation and avoid civil penalties,
`
`a religious nonprofit need only file a self-certification form
`stating (1) that it “opposes providing coverage for some or
`all of any contraceptive services required to be covered
`under [the regulation] on account of religious objections,”
`(2) that it “is organized and operates as a nonprofit en-
`
`
` tity,” and (3) that it “holds itself out as a religious organiza-
`tion.” §147.131(b). The form is reprinted in an appendix
`to this opinion. Any organization that completes the form
`
`and provides a copy to its insurance issuer or third-party
` administrator1 need not “contract, arrange, pay, or refer
`
`for contraceptive coverage” to which it objects. 78 Fed.
`
`Reg. 39874 (2013); see 29 CFR §2590.715–2713A(b)(1) and
`(c)(1). Instead, the insurance issuer or third-party admin-
`——————
`1Typically, an employer contracts to pay a health insurer to provide
`
` coverage; the insurer both covers the cost of medical claims and man-
` ages the process for administering those claims. Employers who
`
`maintain self-insured plans cover the cost of claims for medical treat-
`ment directly. Such employers often contract with third-party adminis-
`
` trators to administer the claims process.
`
`
`
`
`
`
`
`

`
`6
`
`
`
`WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`istrator must provide contraceptive coverage for the organ-
`ization’s employees and may not charge the organization
`any premium or other fee related to those services. The
`back of the self-certification form reminds third-party
`administrators that receipt of the form constitutes notice
`
`that they must comply with their regulatory obligations.
`See Appendix, infra.
`
`
`
`B
`
`Rather than availing itself of this simple accommoda-
`tion, Wheaton filed suit, asserting that completing the
`form and submitting it to its third-party administrator
`would make it complicit in the provision of contraceptive
`coverage, in violation of its religious beliefs. On that
`basis, it sought a preliminary injunction, claiming that the
`law and regulations at issue violate RFRA, which provides
`that the Government may not “substantially burden a
`person’s exercise of religion” unless the application of that
`burden “is the least restrictive means of furthering [a]
`compelling governmental interest.” 42 U. S. C. §§2000bb–
`
`1(a) and (b).2
`The District Court denied a preliminary injunction on
`
`the ground that the regulations exempting Wheaton from
`the contraceptive coverage requirement do not substan-
`tially burden its exercise of religion. App. to Emergency
`Application for Injunction Pending Appellate Review 1–20.
`
`Under Circuit precedent, the court reasoned, Wheaton’s
`act of “filling out the form and sending it to the [third-
`party administrator]” in no way “triggers” coverage of
`contraception costs. Id., at 9 (internal quotation marks
`omitted). The Seventh Circuit in turn denied Wheaton’s
`motion for an injunction pending appeal. See Order in No.
`14–2396 (CA7, June 30, 2014). In doing so, it relied on
`——————
`2Wheaton also raised claims under the First Amendment and the
`Administrative Procedure Act. Because it does not press those claims
`
` in this Court as a basis for injunctive relief, I do not discuss them.
`
`
`
`
`
`
`
`

`
`7
`
`
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`this Court’s pronouncement in Hobby Lobby “that the
`accommodation provision (applicable in this case) ‘consti-
`tutes an alternative that achieves all of the Government’s
`aims while providing greater respect for religious liberty.’”
`
`Ibid.
`Wheaton applied to JUSTICE KAGAN, in her capacity as
`
`Circuit Justice for the Seventh Circuit, for an emergency
`injunction against enforcement of the law and regulations
`pending resolution of its legal challenge. She referred the
`matter to the Conference, which entered a temporary
`injunction and called for a response from the Government.
`See ante, at ___. After receipt of the Government’s re-
`sponse, the Court today enters an order granting injunc-
`tive relief.
`
`
`
`II
`
`
`A
`
`I disagree strongly with what the Court has done.
`
`Wheaton asks us to enjoin the enforcement of a duly en-
`acted law and duly promulgated regulations before the
`courts below have passed on the merits of its legal chal-
`lenge. Relief of this nature is extraordinary and reserved
`for the rarest of cases. With good reason. The only source
`of authority for this Court to issue an injunction pending
`review in the lower courts is the All Writs Act, which
`provides that this Court “may issue all writs necessary or
`appropriate in aid of [its] . . . jurisdictio[n] and agreeable
`to the usages and principles of law.” 28 U. S. C. §1651(a).
`This grant of equitable power is a failsafe, “to be used
`‘sparingly and only in the most critical and exigent cir-
`cumstances.’” Ohio Citizens for Responsible Energy,
`
`
` Inc. v. NRC, 479 U. S. 1312, 1313 (1986) (SCALIA, J., in
`
`chambers).
`Under our precedents, “[a]n injunction is appropriate
`
`only if (1) it is necessary or appropriate in aid of our juris-
`diction, and (2) the legal rights at issue are indisputably
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`8
`
`
`
`WHEATON COLLEGE v. BURWELL
`
`
` SOTOMAYOR, J., dissenting
`
` clear.” Turner Broadcasting System, 507 U. S., at 1303
`
`(brackets, internal quotation marks, and citations omit-
`ted).3 To understand how high a bar that second prong is,
`consider that this Court has previously pointed to differ-
`ences of opinion among lower courts as proof positive that
`the standard has not been met. See Lux v. Rodrigues, 561
`U. S. 1306, 1308 (2010) (ROBERTS, C. J., in chambers)
`
`(observing that “the courts of appeals appear to be reach-
`ing divergent results” respecting the applicant’s claim, and
`that, “[a]ccordingly, . . . it cannot be said that his right to
`relief is ‘indisputably clear’”). Neutral application of this
`
`principle would compel the denial of Wheaton’s application
`without any need to examine the merits, for two Courts of
`Appeals that have addressed similar claims have rejected
`them. See Notre Dame v. Sebelius, 743 F. 3d 547 (CA7
`2014); Michigan Catholic Conference and Catholic Family
`
`Services v. Burwell, ___ F. 3d ___, 2014 WL 2596753 (CA6,
`June 11, 2014).4 Remarkably, the Court uses division
`——————
`3Indeed, some of my colleagues who act to grant relief in this case
`
`have themselves emphasized the exceedingly high burden that an
`
` applicant must surmount to obtain an interlocutory injunction under
`the All Writs Act. See Lux v. Rodrigues, 561 U. S. 1306, 1307 (2010)
`(ROBERTS, C. J., in chambers) (an applicant must demonstrate that “the
`legal rights at issue are indisputably clear” in order to obtain such
`injunctive relief) (internal quotation marks omitted); Respect Maine
`PAC v. McKee, 562 U. S. ___, ___ (2010) (unlike a stay of a lower court’s
`order, a request for an injunction against the enforcement of a law
`“ ‘does not simply suspend judicial alteration of the status quo but
`
`
`grants judicial intervention that has been withheld by lower courts’ ”)
`
`
`
`(quoting Ohio Citizens for Responsible Energy, Inc. v. NRC, 479 U. S.
`1312, 1313 (1986) (SCALIA, J., in chambers)).
`4To be sure, two other Courts of Appeals have recently granted tem-
`porary injunctions similar to the one Wheaton seeks here. See Order in
`Eternal Word Television Network, Inc. v. Secretary, U. S. Dept. of
`Health and Human Services, No. 14–12696–CC (CA11, June 30, 2014)
`(granting injunction pending appeal); Order in Diocese of Cheyenne v.
`Burwell, No. 14–8040 (CA10, June 30, 2014) (same). Although denying
`the injunction in this case would produce a different outcome, the
`Government could of course move to vacate those injunctions were we
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`
` among the Circuits as a justification for the issuance of its
`order, noting that “division is a traditional ground for
`certiorari.” Supra, at 1. But a petition for writ of certio-
`rari is not before us. Rather, given the posture of this appli-
`cation—for an emergency injunction under the All Writs
`Act—division of authority is reason not to grant relief.
`B
`Wheaton’s RFRA claim plainly does not satisfy our
`
`demanding standard for the extraordinary relief it seeks.
`
`For one thing, the merits of this case are not before this
`
`Court for full review; adjudication of the merits is still
`pending in the District Court. So nothing necessitates
`intervention in order to “‘aid . . . our jurisdiction,’” Turner
`Broadcasting System, 507 U. S., at 1301 (alterations omit-
`
`ted), over any eventual certiorari petition from a decision
`rendered below. If the Government is allowed to enforce
`the law, either Wheaton will file the self-certification form,
`or it will not. Either way, there will remain a live contro-
`versy that this Court could adjudicate after the case is
`decided on the merits below. And either way, if Wheaton
`is correct in its challenge to the law, its rights will be
`vindicated and it will obtain the relief it seeks.
`
`
`As to the merits, Wheaton’s claim is likely to fail under
`any standard, let alone the standard that its entitlement
`to relief be “‘indisputably clear,’” ibid. Wheaton asserts
`that filing the self-certification form might ultimately
`result in the provision of contraceptive services to its
`employees, thereby burdening its religious exercise. And
`it points out that if it does not file the form, it will face
`civil penalties. But it is difficult to understand how these
`arguments make out a viable RFRA claim.
`
`RFRA requires Wheaton to show that the accommoda-
`
`
`
`
`
`
`
`
`
`
`
`9
`
`
`
`
`
`——————
`
`to deny this one. Moreover, while uniformity certainly is important,
`
`uniform error is not.
`
`
`
`
`
`

`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`tion process “substantially burden[s] [its] exercise of reli-
`gion.” §2000bb–1(a). “Congress no doubt meant the modi-
`
`fier ‘substantially’ to carry weight.” Hobby Lobby, 573
`U. S., at ___ (GINSBURG, J., dissenting) (slip op., at 20).
`
`
`
`Wheaton, for religious reasons, categorically opposes the
`provision of contraceptive services. The Government has
`given it a simple means to opt out of the contraceptive
`coverage mandate—and thus avoid any civil penalties for
`failing to provide contraceptive services—and a simple
`means to tell its third-party administrator of its claimed
`exemption.
`Yet Wheaton maintains that taking these steps to avail
`
`itself of the accommodation would substantially burden its
`religious exercise. Wheaton is “religiously opposed to
`emergency contraceptives because they may act by killing
`a human embryo.” Emergency Application for Injunction
`Pending Appellate Review 11. And it “believes that au-
`thorizing its [third-party administrator] to provide these
`
`drugs in [its] place makes it complicit in grave moral evil.”
`Ibid. Wheaton is mistaken—not as a matter of religious
`faith, in which it is undoubtedly sincere, but as a matter of
`law: Not every sincerely felt “burden” is a “substantial”
`
`one, and it is for courts, not litigants, to identify which
`are. See Hobby Lobby, 573 U. S., at ___ (GINSBURG, J.,
`
`
`dissenting) (slip op., at 21–22). Any provision of contra-
`
`ceptive coverage by Wheaton’s third-party administrator
`would not result from any action by Wheaton; rather, in
`every meaningful sense, it would result from the relevant
`law and regulations. The law and regulations require, in
`
`essence, that some entity provide contraceptive coverage.
`A religious nonprofit’s choice not to be that entity may
`leave someone else obligated to provide coverage instead—
`but the obligation is created by the contraceptive coverage
`mandate imposed by law, not by the religious nonprofit’s
`
`
`
`
`
`
`
`
`
`10
`
`
`

`
`
`
`
`11
`
`
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
` choice to opt out of it.5
`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—no matter
`how sincere or genuine that belief may be—does not make
`it so.
`
`An analogy used by the Seventh Circuit may help to
`
`explain why Wheaton’s complicity theory cannot be legally
`sound:
`“Suppose it is wartime, there is a draft, and a Quaker
`is called up. Many Quakers are pacifists, and their
`pacifism is a tenet of their religion. Suppose the
`Quaker who’s been called up tells the selective service
`system that he’s a conscientious objector. The selec-
`tive service officer to whom he makes this pitch ac-
`cepts the sincerity of his refusal to bear arms and ex-
`cuses him. But as the Quaker leaves the selective
`service office, he’s told: ‘you know this means we’ll
`have to draft someone in place of you’—and the Quaker
`replies indignantly that if the government does
`that, it will be violating his religious beliefs. Because
`his religion teaches that no one should bear arms,
`drafting another person in his place would make him
`responsible for the military activities of his replace-
`ment, and by doing so would substantially burden his
`own sincere religious beliefs. Would this mean that
`by exempting him the government had forced him to
`——————
`5Wheaton notes that the back of the self-certification form provides
`
`
`third-party administrators with notice of their regulatory obligations.
`
`See Emergency Application for Injunction Pending Appellate Review 8;
`see also Appendix, infra. That notice is merely an instruction to third-
`
`
`party administrators; it is not a part of any of the representations
`
`required on the front of the form. No statement to which Wheaton
`must assent in any way reflects agreement with or endorsement of the
`
`notice.
`
`
`
`
`
`
`
`
`
`

`
`12
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`‘trigger’ the drafting of a replacement who was not a
`conscientious objector, and that the Religious Free-
`dom Restoration Act would require a draft exemption
`
`for both the Quaker and his non‐Quaker replace-
`
`
`
`ment?” Notre Dame, 743 F. 3d, at 556.
`Here, similarly, the filing of the self-certification form
`
`
` merely indicates to the third-party administrator that a
`religious nonprofit has chosen to invoke the religious
`accommodation. If a religious nonprofit chooses not to pay
`for contraceptive services, it is true that someone else may
`have a legal obligation to pay for them, just as someone
`may have to go to war in place of the conscientious objec-
`tor. But the obligation to provide contraceptive services,
`like the obligation to serve in the Armed Forces, arises not
`from the filing of the form but from the underlying law
`
`and regulations.
`
`It may be that what troubles Wheaton is that it must
`participate in any process the end result of which might be
`the provision of contraceptives to its employees. But that
`is far from a substantial burden on its free exercise of
`
`religion.
`
`Even if one were to conclude that Wheaton meets the
`substantial burden requirement, the Government has
`shown that application of the burden is “the least restric-
`tive means” to further a “compelling governmental inter-
`est,” §2000bb–1(b)(2). The contraceptive coverage re-
`
`quirement plainly furthers compelling interests in public
`health and women’s well-being. See Hobby Lobby, ante, at
`2 (KENNEDY, J. concurring). And it is the “least restrictive
`
`
`means” of furthering those interests. Indeed, as justifica-
`tion for its decision in Hobby Lobby—issued just this
`week—the very Members of the Court that now vote to
`
`grant injunctive relief concluded that the accommodation
`“constitutes an alternative that achieves all of the Gov-
`ernment’s aims while providing greater respect for reli-
`
`
`
`
`

`
`
`
` 13
`
`
`
`
`
`
`
` Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
` gious liberty.” Ante, at 3 (majority opinion); see also ante,
`
`at 4 (“The effect of the [Dept. of Health and Human Ser-
`vices (HHS)]-created accommodation on the women em-
`ployed by Hobby Lobby and the other companies involved
`in these cases would be precisely zero. Under that ac-
`commodation, these women would still be entitled to all
`FDA-approved contraceptives without cost sharing”); ante,
`at 44 (“At a minimum . . . [the accommodation] does not
`impinge on the plaintiffs’ religious belief that providing
`insurance coverage for the contraceptives at issue here
`violates their religion, and it serves HHS’s stated interests
`equally well”); see also ante, at 4 (KENNEDY, J., concur-
`
`
`ring) (“[I]t is the Court’s understanding that an accommo-
`dation may be made to the employers without imposition
`of a whole new program or burden on the Government. As
`the Court makes clear, this is not a case where it can be
`
`established that it is difficult to accommodate the govern-
`ment’s interest, and in fact the mechanism for doing so is
`already in place”). Today’s grant of injunctive relief sim-
`ply does not square with the Court’s reasoning in Hobby
`Lobby.
`It should by now be clear just how far the Court has
`
`strayed in granting Wheaton an interlocutory injunction
`against the enforcement of the law and regulations before
`the courts below have adjudicated Wheaton’s RFRA claim.
`
`To warrant an injunction under the All Writs Act, the
`Court must have more than a bare desire to suspend the
`existing state of affairs; Wheaton’s entitlement to relief
`
`must be indisputably clear. While Wheaton’s religious
`conviction is undoubtedly entitled to respect, it does not
`come close to affording a basis for relief under the law.
`C
`The Court’s approach imposes an unwarranted and
`
`unprecedented burden on the Government’s ability to
`administer an important regulatory scheme. The Execu-
`
`
`
`
`
`

`
`
`
`
`
`14
`
`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`
` tive is tasked with enforcing Congress’ mandate that
`preventative care be available to citizens at no cost beyond
`that of insurance. In providing the accommodation for
`which Wheaton is eligible, the Government has done a
`salutary thing: exempt religious organizations from a
`requirement that might otherwise burden them. Wheaton
`objects, however, to the minimally burdensome paperwork
`necessary for the Government to administer this ac-
`commodation.
`If the Government cannot require or-
`ganizations to attest to their views by way of a simple
`
`self-certification form and notify their third-party admin-
`istrators of their claimed exemption, how can it ever iden-
`tify the organizations eligible for the accommodation and
`perform the administrative tasks necessary to make the
`accommodation work? The self-certification form is the
`least intrusive way for the Government to administer the
`accommodation. All that a religious organization must do
`is attest to the views that it holds and notify its third-
`party administrator that it is exempt. The Government
`rightly accepts that attestation at face value; it does not
`question whether an organization’s views are sincere. It is
`not at all clear to me how the Government could adminis-
`ter the religious nonprofit accommodation if Wheaton
`were to prevail.
`
`The Court has different ideas, however. Stepping into
`the shoes of HHS, the Court sets out to craft a new admin-
`istrative regime. Its order grants injunctive relief so long
`as Wheaton “informs the Secretary of Health and Human
`Services in writing that it is a non-profit organization that
`holds itself out as religious and has religious objections to
`providing coverage for contraceptive services.” Supra, at
`1. And it goes further—“[t]o meet the condition for injunc-
`tion pending appeal,” the Court continues, Wheaton “need
`not use the [self-certification] form prescribed by the
`Government . . . and need not send copies to health insur-
`
`ance issuers or third-party administrators.” Ibid. This
`
`
`
`
`
`

`
`
`
`
`15
`
`
`Cite as: 573 U. S. ____ (2014)
`
` SOTOMAYOR, J., dissenting
`
`
`Court has no business rewriting administrative regula-
`
`tions. Yet, without pause, the Court essentially does just
`
`that.6
`
`It is unclear why the Court goes to the lengths it does to
`rewrite HHS’s regulations. Presumably the Court intends
`to leave to the agency the task of forwarding whatever
`notification it receives to the respective insurer or third-
`party administrator. But the Court does not even require
`the religious nonprofit to identify its third-party adminis-
`trator, and it neglects to explain how HHS is to identify
`that entity. Of course, HHS is aware of Wheaton’s third-
`
`party administrator in this case. But what about other
`cases? Does the Court intend for HHS to rely on the filing
`of lawsuits by every entity claiming an exemption, such
`that the identity of the third-party administrator will
`emerge in the pleadings or in discovery? Is HHS to under-
`take the daunting—if not impossible—task of creating a
`database that tracks every employer’s insurer or third-
`
`
`
`
`
`——————
` 6This case is crucially unlike Little Sisters of the Poor v. Sebelius, 571
`
`
`U. S. ___ (2014). There, the Court issued a comparable order “based on
`all the circumstances of the case”—in particular, the fact that the
`applicants’ third-party administrator was a “church plan” that had no
`legal obligation or intention to provide contraceptive coverage. See
`
` Little Sisters of the Poor v. Sebelius, 2013 WL 6839900, *10–*11, *13 (D
`Colo., Dec. 27, 2013). As a consequence, whatever the merits of that
`
` unusual order, it did not affect any individual’s access to contraceptive
`coverage. Not so here. Wheaton’s third-party administrator bears the
`legal obligation to provide contraceptive coverage only upon receipt of a
`valid self-certification. See 26 CFR §54.9815–2713A(b)(2) (2013); 29
`CFR §2510.3–16(b) (2013). Today’s injunction thus risks depriving
`
`hundreds of Wheaton’s employees and students of their legal entitle-
`ment to contraceptive coverage. In addition, because Wheaton is
`materially indistinguishable from other nonprofits that object to the
`Government’s accommodation, the issuance of an injunction in this case
`will presumably entitle hundreds or thousands of other objectors to the
`same remedy. The Court has no reason to think that the administra-
`tive scheme it foists on the Government today is workable or effective
`on a national scale.
`
`
`
`
`
`
`
`
`
`
`
`

`
`
`
` WHEATON COLLEGE v. BURWELL
`
` SOTOMAYOR, J., dissenting
`
`
`party administrator nationwide? And, putting that aside,
`
`why wouldn’t Wheaton’s claim be exactly the same under
`the Court’s newly-fashioned system? Either way, the end
`result will be that a third-party administrator will provide
`contraceptive coverage. Surely the Court and Wheaton
`are not just objecting to the use of one stamp instead of
`two in order to avail itself of the accommodation.
`The Court’s actions in this case create unnecessary costs
`
`and layers of bureaucracy, and they ignore a simple truth:
`The Government must be allowed to handle the basic
`tasks of public administration in a manner that comports
`with common sense. It is not the business of this Court to
`ensnare itself in the Government’s ministerial handling of
`its affairs in the manner it does here.
`
`
`*
`*
`*
`I have deep respect for religious faith, for the important
`
`
`and selfless work performed by religious organizations,
`and for the values of pluralism protected by RFRA and the
`Free Exercise Clause. But the Court’s grant of an injunc-
`tion in this case allows Wheaton’s beliefs about the effects
`of its actions to trump the democratic interest in allowing
`the Government to enforce the law. In granting an injunc-
`tion concerning this religious nonprofit accommodation,
`the availab

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket