Yesterday in an in-chambers opinion, Justice Sotomayor declined Hobby Lobby’s request for an emergency application for injunction pending appeal of the Tenth Circuit’s decision denying Hobby Lobby’s request for preliminary injunction.
That was a legal mouthful, so here’s what it means:
Hobby Lobby wanted to block application of the birth control benefit because of Jesus. (Writing for RH Reality Check, I discussed Hobby Lobby’s complaint here.) The district court said no. (Writing for RH Reality Check, I discussed that decision here.) Hobby Lobby appealed to the Tenth Circuit. The Tenth Circuit also said no. (Writing for RH Reality Check, Jessica Mason Pielko discussed that decision here.)
Still unsatisfied, Hobby Lobby filed an emergency application with SCOTUS, seeking an injunction to block the birth control benefit — even though it already lost that argument… twice. In an in-chambers opinion (which means an opinion written by an individual justice acting alone) Justice Sotomayor said no, essentially stating that there is no good reason that Hobby Lobby can’t just wait and see how its case proceeds in the lower courts:
[A] request for an injunction pending appeal “‘does not simply suspend judicial alteration of the status quo but grants judicial intervention that has been withheld by lower courts.’” Accordingly, a Circuit Justice may issue an injunction only when it is “[n]ecessary or appropriate in aid of our jurisdiction” and “the legal rights at issue are indisputably clear.” Applicants do not satisfy the demanding standard for the extraordinary relief they seek.
First, whatever the ultimate merits of the applicants’ claims, their entitlement to relief is not “indisputably clear.” This Court has not previously addressed similar RFRA or free exercise claims brought by closely held for-profit corporations and their controlling shareholders alleging that the mandatory provision of certain employee benefits substantially burdens their exercise of religion. Moreover, the applicants correctly recognize that lower courts have diverged on whether to grant temporary injunctive relief to similarly situated plaintiffs raising similar claims,… and no court has issued a final decision granting permanent relief with respect to such claims.
Second, while the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction. Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts. Following a final judgment, they may, if necessary, file a petition for a writ of certiorari in this Court. (internal citations omitted.)
Sotomayor’s denial was routine and grounded in technical arguments about the Court’s jurisdiction. Basically, (and in non-legalese), the issues presented in these birth control benefit lawsuits are novel, lower courts are all over the place in adjudicating the lawsuits, and Hobby Lobby will just have to settle down and ride out the process.
I guarantee that conservatives and Forced Birthers will try to make a stink about the fact that Sotomayor acted alone in denying Hobby Lobby’s appeal. Don’t fall for it. This is nothing more than routine Supreme Court business. Hobby Lobby will get its day in court and it damn well knows it. I doubt Hobby Lobby’s attorneys thought for a second that the Supreme Court would grant its emergency injunction — they simply wanted to be able to complain that the Supreme Court wouldn’t grant the injunction because President Obama hates your religious freedoms.
The bottom line is this: Hobby Lobby will be able to argue the merits of its case in district court. And should Hobby Lobby lose on the merits in district court, it can appeal to the Tenth Circuit. And should Hobby Lobby lose again (which it will… hopefully), it can ask the Supremes to hear the case at that time.
Ultimately, the SCOTUS ruling is neither a huge win for the Obama administration nor a grave loss for Hobby Lobby and religious interlopers. The Tenth Circuit’s order, however, should provide some comfort for birth control enthusiasts — as Jessica Mason Pielko noted:
The appeals court has not yet ruled on the merits of Hobby Lobby’s case, but the language in this order suggests the court is skeptical of claims that the mandate represents any true burden to businesses like Hobby Lobby. “We do not think there is a substantial likelihood that this court will extend the reach of (the Religious Freedom Restoration Act) to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship,” the court said in its ruling. Further, the court held, “[P]laintiffs have not cited, and the court has not found, any case concluding that secular, for-profit corporations such as Hobby Lobby and Mardel have a constitutional right to the free exercise of religion.”
So, it looks good. Hooray!
I know I am becoming a bit of a contraception mandate/birth control benefit drone, but I find these legal questions fascinating. Do brick and mortar buildings have feelings and can businesses exercise religious conscience? Will Citizens United provide for-profit purportedly religious organizations any cover? Did the Obama Administration shoot itself in the foot by compromising with the Catholic Bishops and thus conceding that paying for contraception is participation in sin? Is the Catholic Church full of shit?
Annie, are you okay?
Well, she will be if she can get some goddamn birth control from her employer without having a bunch of religious wingnuts breathing down her neck, mirite?
[cross-posted at ABLC]
jharp
Yes.
MattR
From the Jessica Mason Pielko excerpt.
IANAL, but couldn’t the same thing have been written about the exercise of free speech prior to Citizens United? (EDIT: Of course if I finished reading the damn post before jumping to comment I would have seen that ABL made a similar point)
@Shakespeare: She’s been hit by a smooth criminal.
Shakespeare
Who is “Annie”?
Another Halocene Human
Just want to post that you are doing great work and while Sotomayor’s ruling may be routine business, I read it and I must say I like the cut of her jib.
BD of MN
@Shakespeare: youtube.com/watch?v=RWdGIbZKtmg
Cassidy
@Shakespeare: Annie are you okay, are you okay Annie….nothing? Michael Jackson Smooth Criminal.
eldorado
corporations are not people.
Villago Delenda Est
Is the Pope German? Does he shit in the woods with bears?
Villago Delenda Est
In the modified words of Ed McMahon, “you are correct, ma’am.”
Anoniminous
“Hobby Lobby” has a – subject to judicial approval – Right to Free Exercise of Religion?
A business can have a religion?
WTBFH?
Omnes Omnibus
@Villago Delenda Est: It is my understanding that the bear is, indeed, Catholic.
Anoniminous
@Omnes Omnibus:
And not gay.
(Gotta watch out for them gay bear agendas.)
kathy a.
this was a completely routine order — and totally what one would expect. justice sotomayor was the one addressing it because she is assigned to whatever bubbles up from that circuit.
she could have referred it to the full court, but that is not normally done except (sometimes) in extreme emergency situations, such as when an execution is scheduled, and the clock is actually ticking, and the prison is getting ready to do the deed. and so, in that situation a stay is necessary “in aid of the court’s jurisdiction,” because there is nothing left to decide once the person is dead. seriously: dead guy = no jurisdiction, because the case is over.
hobby lobby’s whine about contraceptive coverage is not that kind of situation. and unless hobby lobby’s lawyers are 57 flavors of stupid, they knew this would be the outcome.
Yutsano
@Anoniminous: Your accomplished task has been witnessed. :)
Betty Cracker
Adding Hobby Lobby to my personal boycott list. If they think birth control is a sin, they shouldn’t take it. Assholes!
kathy a.
when someone rants that they are “taking this all the way to the supreme court,” it is useful to keep in mind that most of what goes to the supreme court is not decided by the big justices. they get all kinds of crazy crap, along with tons of legitimate legal questions, and they turn most of it down — the first line of defense is checking on whether they have jurisdiction, and then they just decline to review most of the rest of it. because they cannot possibly take on everything that somebody has a quarrel with.
Omnes Omnibus
@Anoniminous: Are you sure? I thought it was necessary to be gay to be a bear. Heavyset, hairy straight dudes are just called Walt or Earl.
Howlin Wolfe
So, do these sophists bringing the “freedom of religion” argument against insurance covering birth control really think that it’s any more of an infringement on their right to
punish unapproved sexpractice their religion than telling their employees that they can’t go down to the drugstore and buy contraception?I don’t see the difference, but why aren’t these assholes making that argument, too?
Forum Transmitted Disease
Hobby Lobby for reals?
SHIT.
I buy my R/C shit there, a fair amount of money each year, and these guys are Jesus loons? FORCED BIRTHING SUPREME COURT APPEALING CLINIC BLOCKING ACA REPEALING SOBBING JESUS FREAKS DAMMIT DAMMIT DAMMIT. These fuckers are the only game in town! What the fuck am I going to do, damn well can’t be shopping there anymore, but SHIT.
Why are the pretty ones always the crazy ones?
Temporarily Max McGee (soon enough to be Andy K again)
Imani-
OT, but I ran across something today that seems to be right up your fucking alley.
burnspbesq
If I assert that this has nothing to do with religious freedom and everything to do with trying to gain a business advantage by avoiding a cost that your competitors can’t avoid, does that make me an incorrigible cynic?
Ash Can
I think if the O admin had made that concession toward a secular organization rather than an expressly religious one, that would have been a footshot. Given the legal separation that does exIst In thIs natIon between secular and religious entities, I don’t see this concession establishing any harmful precedent. Of course, IANAL, but it seems like too much of a stretch to me. (And yes, the Catholic Church is full of shit; IIRC It was already providing its non-church employees Insurance that included contraceptive coverage in 26 states before it decided that this would be a political hill to die on.)
Raven
@Omnes Omnibus:
Some folks say there ain’t no bears in arkansas
Some folks never seen a bear at all
Some folks say that bears go around eating babies raw
Some folks got a bear across the hall
Some folks say that bears go around smelling bad
Others say that a bear is honey sweet
Some folks say this bear’s the best I ever had
Some folks got a bear beneath their feet
Some folks drive the bears out of the wilderness
Some to see a bear would pay a fee
Me I just bear up to my bewildered best
And some folks even see the bear in me
So meet a bear and take him out to lunch with you
And even though your friends may stop and stare
Just remember that’s a bear there in the bunch with you
And they just don’t come no better than a bear
ABL
@Anoniminous: That’s what they are arguing. The Tenth Circuit isn’t buying it, but many for-profit businesses have sued making similar arguments, and other courts are buying it. This will end up in SCOTUS.
ABL
@Temporarily Max McGee (soon enough to be Andy K again): what the fucking fuck?!
The Other Bob
In one of the opinions, the documents stated that Hobby Lobby is self insured. Typically, when self insured, a insurance company administers the benefit, but the employer gets a bill for each treatment. I wonder if Hobby Lobby will see what treatments each person is receiving?
kathy a.
@burnspbesq: it does not cost more to have contraceptive coverage in a health care plan. it costs the insurers less, on accounta pregnancies and babies costing so much more. that’s why obama worked this deal with insurance companies, to pony up contraceptive coverage FOR FREE to covered individuals.
Omnes Omnibus
@kathy a.: So you are saying he is not wrong to be cynical, but his cynicism is pointed in the wrong direction?
Anoniminous
@ABL:
It is appalling some courts are buying this nonsense.
Temporarily Max McGee (soon enough to be Andy K again)
@ABL:
Yeah. I know. You were the first person I thought of, but I don’t think I’d have figured a way to bring it to your attention if you hadn’t posted something here when you did (your site hates me, and I just can’t figure out the Hotmail thing).
Roger Moore
@burnspbesq:
In this case, probably so. My guess is that explicitly excluding contraceptives would, if anything, slightly increase the cost of insurance rather than decrease it, since (as has been repeatedly pointed out) an unplanned pregnancy is a hell of a lot more expensive than providing prescription contraceptives. I believe these people are pushing this angle because they genuinely believe that contraception is sinful and they don’t want to be a part of it. I’m sure there are plenty of people who are eager to back their suit for all kinds of cynical reasons, but I think the plaintiffs are true believers.
kathy a.
@The Other Bob: self-insured. isn’t that special?
it seems to me that self-insurance means a lot of company time devoted to evaluating individual claims, not to mention examining individual medical records. are zits covered? ED? will a post-tat infection be disallowed, but a stupid home improvement accident covered? sounds like a nightmare.
kathy a.
@Omnes Omnibus: yeah, maybe. plenty to be cynical about here.
Nutella
@burnspbesq:
Cynicism is, as always, appropriate but actually they’re trying to gain a business advantage by being more self-righteous public bible thumpers than their competition.
Whether Hobby Lobby customers who like their vendors to thump bibles and discriminate against their female employees are more numerous than the customers who don’t remains to be seen.
David in NY
It’s significant that the plaintiffs were seeking a preliminary injunction at this stage. And that the basis for such an injunction is that the party will probably win in the end and that delaying giving them that relief would cause them irreparable injury, or some similar balancing of the interests present at this early stage.
Now, that’s not an easy test to pass in the first place. And once you’ve lost twice, with both trial and appellate courts finding the balance against you, it ought to be even harder, which is what Sotomayor, citing the Court’s precedents, was saying.
So, if it’s not too culturally inappropriate, I say Hobby Lobby gets the chutzpah award for even trying an application to the Supreme Court.
ETA: edit out earlier possible misconstruing of post.
JPL
What if hobby lobby were owned by Jehovah Witnesses?
Anoniminous
Yutsano and Omnes Omnibus:
There ARE Gay Bear Agendas!
So …
:-þ
pffffffffttttttttthhhhhhhhhhhh!!!!!!!!!!!!!!
I just ain’t whistling “Macho Man.”
;-)
TS
In what other country of the world is a woman’s health care determined by their employer? Every level of US government seems to be responding to stupid (all instigated by Fox News talking points) while congress leads the pack in destroying the country.
burnspbesq
I’ll accept that these folks are true believers if, after they lose in this litigation, they shut up, stick to their guns, and pay the penalty.
I think it’s more likely that if they lose in this litigation, they will refuse to pay the penalty and try to hide their assets from Yutsano and his eebil henchmen.
Omnes Omnibus
@Anoniminous: I just though gay was redundant in your statement. What other bears have an agenda? The pandas? Perhaps the red pandas – sneaky little commies that they are.
Tone in DC
@Temporarily Max McGee (soon enough to be Andy K again):
I read that story, and I admit… I cannot believe saying “fuck this shit” as YOU ARE LEAVING THE BUILDING constitutes contempt of court.
marianne19
@other bob and kathy a.
Self insurance typically works through a health insurance company like United as the administrator. The plan has to meet state coverage standards. For example, in NH policies/self insurers can’t omit pregnancy coverage. And that’s why the ACA requires self insurers to comply.
Also, typically, employers will receive a list of treatments paid for, but names are not shown. You don’t get to know who has an STD. I believe that’s covered under the medical privacy law–that HIPPA notice you keep getting when you get a medical treatment.
stinger
@Forum Transmitted Disease: You’ve never noticed the sign on their front door saying that they are closed on Sundays so that their employees can focus on church and family (or words to that effect)?
I generally patronize Michael’s instead, although I like HL’s candle selection better.
Capri
@kathy a.: Perhaps this is not being driven by Hobby Lobby’s lawyers, but by their publicity people. One of the things I read/hear all the time from wingnuts is that the MSM is giving the Obama administration and other liberals cover by not reporting stuff. For example, they believe that Obama didn’t go down in flames when the Jerimiah Wright stuff came to light because wasn’t report enough (ignoring that it could hardly have been covered more). It doesn’t occur to them that most people heard about it, but didn’t particularly care.
Probably the powers that be at Hobby Lobby Central believe that if the American public only knew about how terrible Obamacare was stomping all over their freedom of religion with big, muddy boots they would rise as one and demand its repeal. So, even though they know this thing is a non-starter legally, any press about the situation is a big win in their books.
Oh, and I’ll take Alien Ant Farm’s Smooth Criminal any day:
youtube.com/watch?v=CDl9ZMfj6aE
Roger Moore
@David in NY:
This seems like a very tough barrier to hurdle, especially because, IIRC, the only harm they suffer if they are found not to have provided an adequate health care policy is a fine. Since that fine could always be refunded in the event they prevail, it’s hard to argue irreparable harm.
Anoniminous
@Omnes Omnibus:
Teddy Bears, for one.
(and lunch time over, back to work.)
Roger Moore
@Omnes Omnibus:
The bears in my area seem to have an agenda: sneaking into people’s hot tubs and eating their Costco meatballs.
Omnes Omnibus
@Anoniminous:
@Roger Moore: Live and learn, I guess.
Roger Moore
@Capri:
Of course. They hear about it and they care, so they assume that everyone else will care just as much as they do. That other people aren’t freaking out they way they are can only be proof that it hasn’t gotten enough publicity. They’re sure they can throw the Democrats out if only they scream loud enough for everyone to hear them.
Roger Moore
@Anoniminous:
Care Bears?
Barbara
Question for the owners of Hobby Lobby: If Hobby Lobby were to declare bankruptcy and be unable to fulfill the demands of its creditors would its debts be attributed to its owners such that they would be required to meet those debts with their own personal assets, and if not, how is it that a corporation, even a small one, can be “separate” from its owners for purposes of meeting its debts but not for complying with laws govering employee benefit plans?
How can a corporation have a separate legal existence but still function as the alter ego of its owners?
Omnes Omnibus
@Barbara: Yeah, it does help make the case for piercing the corporate veil, doesn’t it?
Joey Maloney
@top: I know I am becoming a bit of a contraception mandate/birth control benefit drone
Drone?
DROOOOOOOOOOOOOONZE!!!
gene108
@The Other Bob:
Per HIPAA laws the employer cannot see what treatments an individual is receiving.
What they will receive is a statement showing ‘x’ dollars was spent on Preventive Care or ‘y’ dollars was spent on Gall Bladder Surgery.
You’d have to be a real busy body to figure out, who is responsible for what costs on the medical plan or the outfit is so damn small, everyone knows everyone elses business.
@kathy a.:
Most self-insurance plans that I’ve seen usually have a Third Party Administrator (TPA) handle the individual claims. Everything is basically defined by the insurance provider and what they have agreed to cover in their insurance product.
The only difference is instead of the insurance being 100% liable for claims payments, you (the employer) are responsible for claims payments, until you hit your stop-less limit, either for an individual or aggregate for the month.
Individual stop loss is pretty cut and dry. The insurance carrier agrees to pay 100% of all claims, after the stop-loss limit is reached, which is usually something like 10k to 20k (from my experience).
The aggregate stop-less kicks in, if the total claims paid for the period exceed a certain threshold. This is usually harder to hit.
The bad experience I’ve had regarding self-insurance is mainly due to a bunch of small claims that are well below the individual stop-less limit and don’t hit the aggregate stop-loss for the period.
I can see certain regular use of prescription medications being something an employer would like to not have to cover, in order to reduce the small claims they have to pay for that aren’t going to hit either stop-loss limit.
The upside to self-insurance, for the employer is that if your claims aren’t high, you can get some money back versus what you’d have paid in a fully insured plan.
burnspbesq
@Barbara:
I have my J.D., and I’m admitted in two states. You can’t make me answer any more law school exam questions.
Joey Maloney
@Villago Delenda Est:
No, it’s children’s innocence he shits on.
David in NY
@Roger Moore: “irreparable injury”
I think there’s law on the non-monetary injury involved in, say, deprivation of the right to vote, which might be analogous to the right to free exercise. And it may well be that such deprivations are irreparable, even if they result in no monetary loss. Which may be why Sotomayor seems to slide by this issue in the opinion excerpt above. But I don’t really know for sure, without doing some reading.
The real killer here is the “likelihood of success on the merits” or the stronger standard at the Supreme Court stage, that the right in question is “indisputably clear.” That’s plainly not present here — lots of dispute possible, and justifiable.
ETA: And “irreparable injury” is not really the standard once it gets to the Sup. Ct., anyway. It’s that “aid of jurisdiction” business.
burnspbesq
@Omnes Omnibus:
Or, if you’re feeling bloody-minded, you send a copy of the petition to your local U.S. Attorney with a covering note saying “gee, I don’t see how this debtor is insolvent. Don’t you think you should be moving to dismiss?” And cc the head of Collection Advisory at your local IRS office.
Barbara
Self-insurance: you also don’t have to pay state premium tax or cover state mandated benefits. Federal mandated benefits are a different animal, but they are the price you pay for getting that incredibly generous federal tax treatment for employer provided benefits (exclusion from the SS and withholding wage base).
Barbara
Omnes Omnibus: yes, indeed, and the case would be even easier to make if it were for things like unpaid wages or other employment related payments. In reality, the argument they are making ought to be untenable. That’s my point, which I am sure you realize.
Lojasmo
@Another Halocene Human:
I blame Obama.
Suzanne
Correct me if I’m wrong, as IANAL, but I would presume that this case, should Hobby Lobby prevail, would in effect open the door to companies straight up having the power to decide which medical conditions to pay to treat and which to not, regardless of whether or not there is any religious interest.
That’s terrifying.
Roger Moore
@Suzanne:
I think you’re missing the even bigger picture. This is part of a long-term attempt to carve out a big religious exemption to all kinds of laws. Their ultimate goal is to provide a religious opt-out for any law they disagree with.
The Golux
As I’ve said in another thread (and what’s the point of having an axe to grind if you can’t grind it to a nub), the main problem with god-botherers whining about spending money to allow sluts to achieve total slutioisity is — IT AIN’T THEIR MONEY. It’s part of their employees compensation, so they have zero authority to avoid spending it on things they don’t like. They can go fuck themselves, which they won’t, but FSM knows they need it.
Mnemosyne (iPhone)
@Roger Moore:
Sadly, Meatball pulled that trick one too many times and landed hisself in bear prison (aka an animal sanctuary). But they’re going to be introducing him to a new ladyfriend soon, so it’s not all bad for him.
Mnemosyne (iPhone)
On topic, I’m guessing that the “irreparable injury” that HL was referring to was that they were going to have to offer this benefit to their employees after 1/1/13 but then yank it two or three years down the road if they win, pissing off said employees.
To which my answer is, tough shit.
SiubhanDuinne
@Shakespeare:
What is she,
That all our swains commend her?
Suzanne
@Roger Moore: That is equally terrifying.
I can just imagine that employers would, should this suit be successful, purport to offer health coverage and then fail to cover, well, anything they want. “You got cancer? Too bad; smoking is a risk factor for lung cancer, you smoked for a little while in college, and I’m “religiously opposed” to smoking ’cause you were supposed to treat your body like a temple or some shit, and you failed. So I’m religiously opposed to your cancer treatment.” I can see that scenario playing out any time any time medical expenses get expensi…..uh, wait, I mean, any time some company’s owners decide they have a, uh, conscientious objection. Or whatever they call it. Would be a nice way to get around Obamacare. They offer the insurance but then don’t actually deliver services.
Odie Hugh Manatee
@Suzanne:
Imagine what insurance coverage would be like for the employees of business owners whose religion believes that any medical intervention is against their religion.
Employee, heal thyself!
pseudonymous in nc
@kathy a.:
ITYM “for the cost of the hefty, world’s-most-expensive health insurance premiums, just without a surcharge.” (And if the employees don’t see that premium as a minus in their monthly wage statement, it doesn’t mean it’s not being deducted.)
Yutsano
@Suzanne:
SSHHH!! You’re giving away the plot!!
kathy a.
@pseudonymous in nc: we’re not really quarreling. i meant, “no extra cost to employer or employee.”
yeah, many/most insurance plans are over-priced. and yes, it costs employers to provide that benefit. “good benefits” was one of the selling points at a couple places where i earned far less than peers doing work in my general field — it was considered part of my compensation package, and helped me do something useful and that i loved, without facing financial crisis should something unexpected happen. group insurance plans are cost-efficient, compared to trying to find health insurance on the open market.
providing contraceptive care is much less expensive than dealing with pregnancy, possible complications, childbirth, and health care for kids (who may have complications after birth, too) — even if the children are wanted. it just is. i can’t understand why any employer thinks he has a stake in ensuring unwanted pregnancies.