Contraceptive Access Further Weakened by Wheaton Decision

Screen Shot 2014-07-08 at 5.28.20 PMIn the flurry of media coverage surrounding the recent Hobby Lobby decision and its curtailment of women’s rights, the dissent of Ruth Bader Ginsburg—now known throughout the Internet as Notorious R.B.G.—became ubiquitous. Full of blistering one-liners, her assertion that the Court had “ventured into a minefield” were the mots de jour, as many wondered what the decision could mean for reproductive freedom in this country.

And now, to muck things up further, comes the case of Wheaton College v. Burwell.

Here’s the background: The Affordable Care Act (ACA) requires health-insurance policies to cover all FDA-approved contraceptives—such as the Pill, emergency contraceptives and IUDs—without co-pays or deductibles. However, religious nonprofits are exempt from having to offer insurance coverage for contraception if it’s against their beliefs. All they have to do is submit a Form 700, stating their religious objections. The simple form allows the insurance issuer to still cover the cost of contraception without the employer having to pay anything. Sounds pretty simple and accommodating right?

Well, Wheaton College, a small Protestant institution in Illinois, fought against this accommodation with lawsuits, arguing that the mere act of signing the form was tantamount to providing birth control. There are currently 51 active court cases challenging the use of Form 700, but the Wheaton suit is the first to go to the Supreme Court.

In a mind-boggling decision, the Supreme Court agreed with Wheaton, issuing a preliminary ruling that the college doesn’t have to sign the form. If that ruling holds, it effectively guts the fail-safe of the previous Hobby Lobby decision: the assumption that “closely-held” private companies with religious objections could sign the same Form 700. This assumption was what Justices Kennedy and Alito used to justify their conclusion in Hobby Lobby that the decision would not prevent women from obtaining no-cost birth control from their employer-provided insurance.

Not surprisingly, it was the three women justices who dissented on Wheaton, with Justice Sonia Sotomayor penning a scathing 16-page dissent, in which she 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.


Sotomayor went on to say that the decision “undermined confidence” in the Court as an institution and put an “unwarranted and unprecedented burden” on the government’s ability to enforce the ACA. By issuing the injunction, Sotomayor argued, the Court had potentially deprived “hundreds of Wheaton’s employees and students of their legal entitlement to contraceptive coverage.”

Now that the floodgates have been opened, other corporate and nonprofit entities that wish to force their religious beliefs on women employees can follow suit. A dangerous precedent was set in the Wheaton ruling. The Form 700 was a workaround that allowed the government to enforce a key provision of the ACA while still making religious nonprofits happy.

Sotomayor explains that “the contraceptive coverage requirement plainly furthers compelling interests in public health and women’s well-being.” Requiring religious nonprofits to submit a form is the “least restrictive” way to further that interest, she wrote.

Women fare better when they are able to choose when or if they want children. This choice should be seen as a human right, not some government freebie or rare privilege. And that’s not even counting the needs of women who use birth control pills for medical reasons such as reducing menstrual pain or relieving polycystic ovary syndrome.

The “narrowness” of the Hobby Lobby decision is already being widened. We did “wander into a minefield,” and the subsequent Wheaton decision was just the first blast.

Photo courtesy of keithpr via Creative Commons 2.0.


Associate editor of Ms. magazine