I had a feeling going through my social media feeds yesterday that I’d need to do a Hobby Lobby case post. I have friends of all political stripes, and whenever I see either my liberal friends or my conservative friends react strongly to a SCOTUS case at the end of the term, it has generally resulted in writing up the decision. We react so quickly to these case outcomes without knowing much about the analysis or the actual terms of the decision. As I usually do, I’m going to cover just the basics of the ruling itself as objectively as possible. (You can also check out my previous posts on DOMA, the Voting Rights Act, and the Affordable Care Act.)
One thing that I’ve heard almost nothing about in this discussion is the law central to this ruling. It’s not the ACA, but the Religious Freedom Restoration Act of 1993 (hereafter the RFRA). It is also not about whether women’s access to contraception, it’s about these specific regulations. These cases often involve a kind of balancing test. The questions are: 1) Whether the RFRA applies to this case, and 2) if it does, does the Department of Health and Human Services’ set of regulations impose a substantial burden on the exercise of religious freedom; and 3) if it does impose a substantial burden, is it in service of a compelling government interest; and finally 4) if so, is it the least restrictive means of serving that interest.
Spoiler alert: the answers are Yes, yes, yes, and no. So fear not, the Court does treat access to contraception as a compelling government interest. It’s simply found that this specific set of regulations aren’t the least restrictive ones available.
Under this decision contraception is all good. Free contraception is all good. It’s simply a question of how to set up a framework of payment to do so without imposing on religious liberty.
One major reason why the answer to #4 is no is that the HHS already has a system in place for religious non-profits to avoid paying for contraception while still making sure it’s provided to women. So it’s hard to argue that the HHS guidelines are the least restrictive.
As is often the case with the Supreme Court, if you’re happy or unhappy with the outcome you should save a good portion of your feelings for Congress. Hobby Lobby has a nice recap of the Court’s religion cases for the last few decades and Congress responded to some of the Court’s decisions by enacting the RFRA and later the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 1993 and 2000, respectively. Basically when the Court sided with the government’s interest Congress came back and codified religious exemptions.
The RFRA holds that even neutral laws that aren’t aimed at religions can still interfere with religious liberty and thus: “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” Under the RFRA you can claim an exemption from a law that interferes with your religion unless the Government shows it has 1) a compelling interest and 2) the least restrictive means of fulfilling that interest. Thus the test referenced earlier.
The RLUIPA also has some language that is critical for purposes of this decision. They wanted a stronger religious protection than what was provided in the Constitution and the Court’s previous rulings. So it says that when it talks about exercise of religion it means “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” It also orders that it be construed as broadly as possible in favor of religious belief and practice.
This is what this case is really about, these two laws, and you should probably send your anger or happiness in their direction more than the Court’s since they make this ruling possible. There is basic evidence provided showing the religious beliefs of the owners of Hobby Lobby and Conestoga (the other company in this ruling) and as long as those basics are there these laws give them basically a default in their favor without much scrutiny.
Now let’s take a look at what the ACA requires. The major issue is that employers must provide health care plans that comply with the ACA or face a penalty. The size of the penalty is what the Court is most concerned about since it decides whether the burden of the law is “substantial” or not. If an employer doesn’t provide the required insurance, they can be charged $100 per day for each individual affected. If they stop providing health insurance, they can be charged $2,000 per year for each employee. Hobby Lobby could be subject to a fine of $475 million per year.
The ACA only requires that women be able to get preventive care and screenings, but authorized the HHS to decide what that would be. They decided to include contraception as well as exemptions for religious employers (like churches) and nonprofits. These employers have their insurance companies perform a little mumbo jumbo so that contraception is still provided to their employees but doesn’t give that expense to the employers.
The Court also notes that there are several exceptions to these requirements as well and that about 1/3 of people have employer health plans that aren’t covered by the contraception mandate.
What is a Person?
This is the area of the decision that’s most subject to controversy.
The RFRA includes the general term “persons” under its protection. And what is the generally held definition of person? It includes corporations, once again according to an act of Congress. The RFRA has already been found to apply to non-profit corporations.
The majority points out that corporations have more goals than to make money and often have humanitarian goals and support charitable causes. It also acknowledges that the decision to organize as a for-profit instead of a non-profit may have little to do with the goals of the corporation but the advantages available by filing as a corporation that can help achieve worthy goals, including lobbying for legislation and supporting political candidates.
HHS contends that for-profit companies are different than non-profits because it can be difficult to determine what their beliefs are and cites publicly traded companies. And this is where the Court decides to narrow its decision to only apply to closely-held companies, or those that aren’t public offerings.
It’s quite typical for the Court to limit its decision only to the exact set of circumstances in front of them. This is a line of reasoning I’m familiar with. Like yesterday when my son asked if we would ever buy lollipops. I said, “Not today?” He said, “Never?” And I repeated, “Not today.” Same deal with the Court. It takes the case as it is and rarely makes any statements that go beyond that set of facts.
This is also the weakest part of the Court’s decision because it finds that it’s “unlikely” that a publicly traded company would ever try to exert this kind of privilege. Not the strongest legal argument.
As for companies where there is disagreement as to whether it follows a set of religious beliefs, that is governed by state law and isn’t at issue here.
The main thing the majority and the dissenters disagree on is how broad the decision is. The majority insists that it’s limited, the dissenters see potentially broad implications. You’re probably much more familiar with these issues as they constitute a lot of the public discussion about what the decision means and what its effects will be. Just a few notes on the opinion in the dissent.
The dissent does not rely much on the RFRA, but instead relies on previous Court rulings that concern a conflict between religious liberty and the liberty of others. The dissent would end it there and not address the RFRA. It’s also of note that 2 Justices (Breyer and Kagan) don’t actually join the RFRA portion of the dissent because they find it unnecessary.
But Ginsburg continues and basically departs from the majority’s findings at each point. It doesn’t find that the use of “person” in the RFRA should apply to corporations. It emphasizes the fact that no commercial entity has received religious protection prior to this decision. It takes the non-profit vs. profit split in a very different view than the majority.
The dissent is also unconvinced by the findings of substantial burden and least restrictive means in the majority opinion.
As For Me
Well, I don’t usually give much of my own opinion in these cases. Here I have a few thoughts but most of them are irrelevant because I’ve never agreed with the Court’s and Congress’s treatment of corporations as persons. So much of the decision is moot to me.
What concerns me far more than the Court’s approach (neither the majority nor the dissent strike me as doing anything particularly nuts, there’s a lot more that makes sense here than in plenty of other decisions) is the response to it. Enacting the ACA is a bumpy ride. Giving women full access to contraception won’t happen without some obstacles. I’m honestly less concerned with this decision than most other people I’ve heard from. Women will get contraception, women will be able to afford contraception, and this is the direction that we’re moving as a nation. I feel confident that women’s voices will continue to be heard.
As for the Court’s jurisprudence when it comes to RFRA, that remains to be seen. It’s not unusual for them to zig zag around as they negotiate around the moderate members of the Court. I’m looking at the long game, and it’s impossible to know whether this is the kind of big step the dissent worries it is or whether it’s just a baby step like the majority says. Only time will tell. For now, I’ll just take my birth control, thanks.