Before I go throwing my opinions on contraception and religious freedom around, I’m briefing the Burwell v. Hobby Lobby Supreme Court case. Today I’ll talk about the background, the circumstances of the case, the decision, and my opinion on the ruling. This is based on my reading of the opinions, which you can find at supremecourt.gov.
This is a free exercise of religion case. A dispute over the application of the Religious Freedom Restoration Act of 1993 (RFRA) to the Affordable Care Act of 2010 (ACA). The RFRA was passed by Congress in response to Oregon Employment Division v. Smith (1990), which involved two Native American employees of a drug rehab facility who were fired for using peyote as part of a religious ceremony.
There was concern over the Smith opinion. It raised concerns that the Court was drifting away from applying strict scrutiny — the most rigorous form of judicial review in the U.S. — to free exercise cases. Congress passed the RFRA to ensure that religious liberties would continue to be protected by strict scrutiny.
Strict scrutiny presents the government three hoops to jump through in order to infringe people’s basic civil liberties:
- The action must be justified by a compelling government interest. There’s no clear definition of “compelling interest.” Sometimes it’s obvious. More often, it is not obvious at all, and it’s up the courts to decide.
- The action must be narrowly tailored. If a law is too broad or doesn’t address the interest asserted by the government, it fails the test.
- The government must use the least restrictive means available to implement the law. A narrowly-tailored law which addresses a compelling interest can be struck down if enforcement infringes unnecessarily on people’s civil liberties.
The court applied this test in Hobby Lobby. The justices agree that the ACA addresses a compelling interest. They disagree about the “least restrictive means.”
Burwell v. Hobby Lobby is the result of two lawsuits filed over the contraception mandates in the Affordable Care Act by Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. against the Department of Health and Human Services and other agencies. They object on religious grounds to specific parts of the mandate that employers who provide health insurance plans include a range of preventive services for women without requiring extra out-of-pocket payments. This includes all forms of FDA-approved contraception.
Hobby Lobby, privately-owned by an evangelical Christian Family, objects to 4 of the approved methods – two emergency contraceptive drugs and two Intrauterine Devices (IUDs), on the grounds that these methods prevent the implantation of fertilized eggs in the uterus and are therefore tantamount to abortions. Conestoga, owned by Mennonites, objects to the pills but not to the IUDs.
The medical consensus is that conception occurs at implantation, not fertilization, and none of the contraceptives in question qualify as abortifacients. I’ll set this disagreement to the side for now. It’s not directly relevant because the case does not turn on the definition of conception. It’s about the right of Hobby Lobby and Conestoga to act on their beliefs. Here’s an NPR explainer on what the physicians say.
Some organizations are allowed exemptions on funding contraception already. To this point, the exemptions have only been allowed to churches and religious non-profits. Not to for-profit companies. Here’s how exemption works.
- A qualifying organization applies for an exemption.
- The government communicates with the insurance provider and requires them to provide the full range of contraceptives to participants in the organization’s plan without spending any of the money that the organization pays for insurance on the specific forms that the organization objects to.
- Insurance companies are not allowed to add month-to-month administrative fees to recover these expenses. They are allowed, however, to adjust annual user fees to cover them.
I’m not sure who pays the annual user fees. No idea whether it’s consistently paid by company, by employees, or shared. I’d assume there are variations. Here’s United Healthcare’s exemption policy if you want an example.
The majority holds that the ACA doesn’t pass the “least restrictive means” test because the government could easily allow Hobby Lobby and Conestoga the same exemption it allows religious organizations, or else absorb the cost of the contraceptives with taxpayer money. Justice Ginsburg, joined by Justice Sotomayor, dissents, pointing out that allowing a for-profit corporation such an exemption is a radical departure from traditional free exercise jurisprudence.
Justice Ginsburg argues the Court’s opinion has the potential to broaden the application of the Religious Freedom Restoration Act beyond the scope clearly intended for it by Congress. She points out that Hobby Lobby and Conestoga didn’t ask for the exemption. Even if it is implemented, it still places a burden on women because they have to learn about the exemption and navigate an extra layer of insurance bureaucracy to take advantage of it. Further, she argues, the exemption in question should only apply to churches and religious non-profits, and that for-profit corporations shouldn’t even be able to bring claims under the RFRA.
Justices Breyer and Kagan joined the dissent with the reservation that they’ve not decided whether or not for-profit corporations should be allowed to bring claims under the RFRA, and it is unnecessary to do so in this case.
Justice Ginsburg has the better of the argument, and not because her opinion agrees more with my political views than the Court’s. The weight of First Amendment jurisprudence and the legislative history of the RFRA support her opinion. She’s on more solid legal ground than the majority. It’s a shame Justice Kennedy chose the side he did.
I’ll have a follow-up that discusses the potentially far-reaching consequences of this decision as soon as I am able to put it together. I expect the primary objection to my next post to go something like this:
The Religious Freedom Restoration Act has been around since 1993. There’s not been a lot of activity centered on it, and it hasn’t changed much in all that time.
So let me just anticipate that objection and answer it now. I am prepared to argue, and stick to my guns, that there is a social movement in the U.S. which has latched onto the idea that asserting religious freedom is the best way to push their agenda forward. I will not name names today, but I will name them later if I am forced to. My sense is that there are more people asserting their religious freedom to the disadvantage of their fellow-citizens in the U.S. today than there have been in a very long time.
Perhaps Chief Justice Roberts, Justice Alito, Justice Scalia, and Justice Thomas are honestly deciding this case on the merits. Perhaps they are in sympathy with this social movement I am referring to. I am not in a position to make that call, so I’m deferring judgment until I see what happens next. I’m sure Justice Kennedy did what he thought best, as unfortunate as it turned out. But I am very concerned about the fact that my country’s constitutional court is divided into equal factions with the conscience and legal expertise of a single person in the breach.
That’s a lot of power to place in the hands of one justice, is what I am saying.