After a nice run of unanimous decisions we got a 5-4 vote from the US Supremes today in Burwell v. Hobby Lobby. For those of you not paying attention to what has been going on, this case involves the Religious Freedom Restoration Act (RFRA), the Affordable Care Act (aka “Obamacare”), Department of Health and Human Services (“HHS”) and two closely held corporations. The corporations are family owned giants Hobby Lobby and Conestoga Wood Specialties.
Despite what you may think, this case has nothing to do with anyone’s mom and pop shop or DBA. In those matters the person and the business are one and the same. This differs greatly from corporations. With corporations the shareholders (owners) and the business are not the same, even if one person holds all the stock. The corporation is a separate entity. Does it fall under the RFRA or does it not? And if it does, to what extent? Can a corporation pick and choose what laws it will follow based upon a religious belief? Can a for-proft corporation have a religious belief? These are the questions the court had to deal with it.
Some saw the opinion and thought that the Court was ruling that religion can be used now to get out of all health care or insurance mandates. According to Justice Alito, that is not the case. To address Justice Ginsburg’s dissent, Alito stated that this decision concerned only the contraceptive mandate and was not holding that all insurance-coverage mandates (e.g vaccinations or blood transfusions) must necessarily fall if they conflict with an employer’s religious beliefs. The Court looked at the compelling state interests and the least intrusive means of achieving that. Of course, a cynic might point out that neither vaccinations nor blood transfusions are banned by the catholic church, and all 5 justices who voted in the majority are catholics(Justice Sotomayor is the other catholic member of the bench and joined in the dissent). And while that may have played some subconscious role, the compelling state interest for covering vaccinations or blood transfusions or organ transplants is substantially easier to show and has few alternatives. Justice Alito points out that contraceptives will still be available through the government. In fact, the Court made clear that the government can provide all of the free contraception it wants and did not exclude post-conception contraceptives. With a government provided and government sponsored alternative available, it was harder to accept the argument that these regulations did not impose a substantial burden on the exercise of religion.
The court also made clear that its ruling can not be used as a shield for employers who might provide a shield for employers who would cloak illegal discrimination as a religious practice. As Justice Alito writes, “The Government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal” 573 U.S.__ (2014).
The court tried to emphasize that there were viable alternatives to accomplish the goals of the ACA provisions and HHS policies that were less restrictive.
It is also important to note that the Court made a decent showing that this was an issue created by the RFRA. It means, naturally, that the RFRA can always be amended. We should also point out that in these cases (Hobby Lobby and Conestoga Wood) there were only four methods of contraceptives that were the basis for the corporate objections, all of which were post-conception. Were the objections for pre-conception would this lead to a different result? To be frank, I do not know. But for the petitioners in these cases, it did make a difference in how they approached it and it seems to have been the best way to go. They expressly had no objections to 16 different contraceptive methods. Let us see that again. Out of 20 contraception methods, the corporations objected to only 4, all of them post-conceptual. In many ways, the owners of the closely held corporations felt that PREVENTING conception was not something they would object to paying for but anything AFTER conception was an evil act. As far as compromises go, it seems like a pretty reasonable one to make. Though Justice Alito is sadly mistaken if he thinks no one is going to try and use this case to expand opposition to contraception or compliance with the ACA.
Where we start to grapple with this decision folks is what happens when a closely held for-profit corporation decides that preventing contraception is evil? The bad news is, despite the narrow ruling, I do not see how they can not be allowed to opt-out. The good news is that in terms of health care it will not matter because the government will offer the coverage. So, at some level for those who are frantically concerned about this opinion the question may be, “Is this about health care for women or are you angry about a political loss?” Of course, that is why we are always wrestling with the law.
We will keep an eye on this for the next few days and encourage you to do the same. There is a chance that this case will have far more of an impact on business entities than just a question of “religious freedom” and that is where the fun begins. We will also take a look at the dissent later on today. We will be doing another “What you got wrong” segment on this issue after we have a chance to see more reactions from the lay public.