A Closer Look at the Hobby Lobby Decision
We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest. [Emphasis added]
-Opinion of the Court, Burwell v. Hobby Lobby Stores, Inc.
My first reaction to hearing the decision in the Hobby Lobby case was one of disbelief. How could the Supreme Court issue a verdict contrary to that which seemed so obvious (to me, anyway)? What does this mean, exactly?
Yesterday, I posed a series of questions based on initial reporting. I think it’s instructive to go back now and actually answer these questions.
1. “How does the Court divine which religious beliefs are worthy of accommodation and which are not?” -Justice Ruth Bader Ginsburg
I think this is one of the key questions in this ruling. Despite the majority’s insistence that this ruling applies only to the issue of contraception, I think it won’t be long before we see other challenges based on the same argument. However, I think the Supreme Court gave us an indication of how they are likely to discourage other seemingly simple lawsuits. (See #4 below.)
2. The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. [p. 41, Opinion of the Court]
Question: Is the Supreme Court endorsing the public option?
It sure sounds like it, doesn’t it? After all, this solution could apply to any objection to health coverage. Opposed to vaccinations? Blood transfusions? The government could provide them. While this may be a theoretical option, I don’t think we’re destined for a government-administered single payer option anytime soon. (See #4.)
3. Was the court so overly-focused on the potential indirect violation of religious freedoms of one set of Americans that they forgot to consider the actual religious freedoms of millions of others? -Rabbi Daniel Brenner
An excellent question; almost nowhere in the opinion does the Court reference any thought at all as to the opinions or beliefs of the employees of these closely-held companies. A major reason I thought the Court would find in favor of the government is the ‘proximity’ argument. That is, I thought the Court would find for the party more likely to suffer direct, individual damage as a result of the outcome.
To my mind, an employer having a certain treatment required in an insurance plan is less damaging than an employee/patient denied specific medical treatment due to their employer’s religious beliefs. If the patient shared those religious beliefs, they could simply insist upon an alternate treatment plan. If the patient does not share the beliefs of her employer, she could manage her health as she sees fit, in consultation with her doctor.
4. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists), among others)? -Justice Ruth Bader Ginsburg
Ah, here we get to the core of the Court’s opinion, as I understand it. I read the opinion to say a couple of things here:
A. No, the Court would not be likely to grant these same exemptions to other groups. The reason the Court ruled in favor of Hobby Lobby is largely due to that ‘least restrictive means’ clause in RFRA:
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under RFRA, that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases is unlawful. [p. 3, Opinion of the Court]
The least-restrictive-means standard is exceptionally demanding... and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases. [p. 40, Opinion of the Court]
HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. [p. 43, Opinion of the Court]
B. I think the Court would argue that in these additional cases (immunizations, blood transfusions, etc.), there is no system that exists which could easily be extended to address these religious concerns, or that the government’s interests could not be satisfied in a less restrictive way:
In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.
The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction... Our decision today provides no such shield. 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. [p. 46, Opinion of the Court]
The effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero. Under that accommodation, these women would still be entitled to all FDA-approved contraceptives without cost sharing. [p. 4, Opinion of the Court]
5. To what degree does an employer retain religious rights to employee compensation? Why is it acceptable for an employee to use cash from an employer to purchase these contraceptives but not insurance benefits? In either case, isn't the employer contributing to the same behavior? In the instance of health insurance, isn't the employer's contribution more removed than when the employee pays directly?
Not surprisingly, the Court did not address my rather pointed questions in their verdict. However, I do think these questions serve to illustrate the futility of trying to distance one’s money from anything with which we disagree. It’s just not possible.
6. This decision seems to concentrate power for individual health decisions in the hands of the few. How does this respect the views of the individual employee? Why do the employer's religious views trump those of the employee in determining their own health care treatment?
As in #3, I think this is a major failing of this opinion. While they may intend for this ruling to accommodate employers while have essentially zero impact on employees, they have expressed an explicit preference for the religious views of an employer over an employee. The best solution would have been to retain religious expression as an individual concern that becomes limited once it affects others outside of your belief system, as indicated by Justice Ginsburg:
No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contraceptive coverage requirement was designed to protect.
Further, the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” Ibid.29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so. [p. 32, Ginsburg, J., dissenting]
7. How are religious beliefs for a nonphysical entity determined? How are they changed? What is the statement and where can it be found? How can a potential employee discover this without prejudicing the hiring process against themselves?
An “eligible organization” means a nonprofit organization that “holds itself out as a religious organization” and “opposes providing coverage for some or all of any contraceptive services required to be covered... on account of religious objections.” To qualify for this accommodation, an employer must certify that it is such an organization. When a group-health-insurance issuer receives notice that one of its clients has invoked this provision, the issuer must then exclude contraceptive coverage from the employer’s plan and provide separate payments for contraceptive services for plan participants without imposing any cost-sharing requirements on the eligible organization, its insurance plan, or its employee beneficiaries. Although this procedure requires the issuer to bear the cost of these services, HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services. [p. 9, Opinion of the Court]
Under the accommodation, the plaintiffs’ female employees would continue to receive contraceptive coverage without cost sharing for all FDA-approved contraceptives, and they would continue to “face minimal logistical and administrative obstacles,” because their employers’ insurers would be responsible for providing information and coverage. [p. 44, Opinion of the Court]
I’m not sure of the long-term impact of this ruling. When I first heard it, I thought it was a disaster that would cause an avalanche of consequences. Actually reading the opinion, I think the attempt to direct a narrow interpretation on simply extending the accommodation previously arranged for nonprofits to ‘closely-held’ companies is more of a comment on the ‘least restrictive’ clause than an endorsement of corporate religious views.
Had there not been an existing structure in place to extend to these companies, I believe the Supreme Court would have ruled differently. Time will tell if future Court decisions expand this understanding or follow a more narrow interpretation of this verdict. For the moment, I’m hopeful this isn’t the disaster I thought it was at first.
Let's be clear: the rights of actual, living individuals lost to the rights of companies this week.