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This has been a very wild week on the front of the Supreme Court and the implementation of the ACA mandates. I have been trying to carefully work my through the legal issues, some of which are fairly complex. I join most people here on Daily Kos in seeing Monday's Hobby Lobby decision as something fundamentally undesirable for several reasons. Yesterday I was trying to explore just what it had opened up in terms of the issue of religious accommodation. then along came the emergency order issued by the court in the case of Wheaton College. The three women justices on the court issued a strong dissent against the order.

Given that the case involves matters pertaining to contraceptive health care for women it becomes easy for parts of the media to paint this as a gender battle on the court. I've spent some time today trying to sort out what the issues here really are. I sat down and read the full text of Justice Sotomayor's dissent. It can be found here.. Much of her analysis is about the issues of the regulations implementing the ACA and the implications for religious issues in relation to contraceptive coverage. That  is the part of her dissent on which the media reports have focused.

However, there are important legal and procedural issues at stake here that go beyond the matters in this particular case. Although Justice Sotomayor does not use such language, it really appears that the court majority has engaged in a rather blatant act of naked power that is not supported by law and established procedure. Here is her position on the matter. She expounds on the point beyond this in the text of the dissent.

I haven't seen any commentary about this particular part of the dissent published. A holiday weekend is likely to delay things. I did check with a friend who is an attorney and he thought that she makes a convincing argument of serious judicial overreach. I find her position convincing. The fact that she was joined by Justices Kagan and Ginsburg is additionally convincing. Neither of them has a history of being legal radicals.

Clearly these three justices along with Breyer support women's access to health care in the earlier Hobby decision. What I think is important to note is that this dissent is not just a matter of three women who are upset about birth control, though there is really nothing wrong with that. There are important legal issues about the way that the court is operating that need to be called to the public attention.  

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