In the most recent Supreme Court round concerning the coverage of contraception in employer-linked health insurance policies, we learn that what is a "substantial burden" is completely determined by the firms who don't wish to cover birth control. This is the Wheaton College case. Wheaton College argues that filling in a form telling others that they will not provide birth control coverage is too impossible a burden, and the majority of the SCOTUS (the five Catholic guys) agreed!
In the"blistering" dissent by the three female Justices Sotomayor points out that when the recent decisions are taken together we end up in a trap of impossibility:
In fact, that accommodation was one of the reasons Justice Samuel Alito cited to justify his Hobby Lobby decision – words Sotomayor threw back at him in the dissent. Under the Religious Freedom Restoration Act, the government has to show it has pursued the least restrictive means to accomplish its goal. Alito claimed that because the nonprofit accommodation exists, that means the government has other ways to get women access to contraception that respects religious liberty. Yet only a few days later, he ruled that the nonprofit accommodation – again, signing a form – is also a violation of religious liberty.
“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,” Sotomayor wrote. “But thinking one’s religious beliefs are substantially burdened … does not make it so.” She added, “Not every sincerely felt ‘burden’ is a ‘substantial’ one, and it is for courts, not litigants, to identify which are.”
What the plaintiffs in the nonprofit cases are seeking is to be treated like churches – no contraception for anyone. But the majority claims that “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,” because the government already knows about their objection from the lawsuit and can tell the insurer itself. But without the form, Sotomayor argues, how could the administration “ever identify the organizations eligible for the accommodation and perform the administrative tasks necessary to make the accommodation work?”
What's a "substantial burden" in an abortion case, say? Nothing much:
On the other hand, filling in a form is a substantial burden for religiously minded entities.
What the Supreme Court majority has accomplished here is pure politics. I thought activist judges were something the American right didn't want on the bench? These five guys have just created the most self-contradictory story possible:
So now we know that nothing the Five Catholic Guys says can be relied upon when it comes to future legal decisions. The Hobby Lobby case was narrowly-tailored? Riiiiight.