With Hobby Lobby, the Supreme Court majority paves the way for minimal changes initially, great changes eventually

July 1, 2014

By Matthew E. Milliken
July 1, 2014

Author’s note: This post was updated on July 4 to correct the name of the author of a commentary on Supreme Court racial discrimination rulings that Reuters published in May.

With a 5-4 decision, the Supreme Court ruled on Monday morning that the government could not compel closely held for-profit corporations to provide contraception to its employees. The majority opinion, written by Associate Justice Samuel Alito, essentially prioritizes the 1993 Religious Freedom Restoration Act over a contraception coverage mandate contained in 2010’s Patient Protection and Affordable Care Act.

One of Alito’s key arguments in Burwell v. Hobby Lobby, beyond his assertion that for-profit businesses are entitled to religious beliefs, is that there is no legal basis in the 1993 law for distinguishing among nonprofit and for-profit corporations. While the justice concedes that providing widespread contraception coverage is in fact a compelling government interest, Alito asserts that the Obamacare law’s mandate is not the least restrictive means of furthering that interest, and thus should be stricken.

Defenders of the ruling note that it is narrow; indeed, the court’s summary includes a disclaimer that “[t]his decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs.”

Alito actually makes a number of efforts to attempt to limit the scope of his opinion:

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 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. (Citations omitted.)

It’s hard to know just how to take this. Bear in mind that commentator Barry Yeoman William Yeomans wrote in May that the Supreme Court “continues its assault on remedies to redress the enduring effects of America’s racial caste system. This string of Roberts Court decisions threatens to undermine the foundation of anti-discrimination laws.”

It’s also unclear why stopping the spread of infectious diseases might be more privileged than, say, allowing a woman to determine whether and when she should give birth — a decision that can affect societal poverty and crime rates in addition to the health and mortality risks that a specific woman might face.

Those who applaud the decision in Burwell v. Hobby Lobby have been quick to declare that Alito’s ruling does not ban female workers from getting or using contraception.

In fact, Alito’s decision practically invites the government to take either of two routes to extending contraception coverage to employees. One option, the justice writes, would be simply for the government to pay for the workers’ contraception itself. The other would be to have the government apply an existing loophole that’s currently reserved for religious nonprofits that object to birth control.

Under this exemption, insurers provide contraception at their own expense, thus ensuring the employees access equal to workers at other companies. (The government, Alito notes, asserts that this loophole does not unnecessarily burden insurance companies because providing contraception is at least as cost-effective as covering pregnancy and related developments.)

This may be the most baffling aspect of the conservative praise for Alito’s ruling. Did the majority of the justices somehow strike an important blow for religious freedom by writing an opinion that excuses employers from having to fund contraceptives while at the same time essentially doing nothing to limit their workers’ access to contraceptives? Some pundits seem to want us to believe both these apparently contradictory propositions at the same time.

If either of the remedies the justice mentions is employed, then doesn’t it turn Hobby Lobby into a pyrrhic victory for conservatives? Right wingers, especially but not exclusively libertarians, are often the first to protest programs that use money extracted from wealthier people to benefit the less well-off.

Perhaps Hobby Lobby’s key effect may be not its minimal short-term impact on contraception access but its eventual expansion of the impact on religion in the public sphere.

Before I explain that, let me note one thing I find ironic about Alito’s decision. He scolds the federal government and the dissent by Associate Justice Ruth Bader Ginsburg, saying they “argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction.”

Of course, it’s hard to predict just how corporations will react to the ruling because, in granting religious rights to corporations, the court’s majority is setting a new precedent. Ginsburg in fact anticipates some of the challenges that may arise:

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)? According to counsel for Hobby Lobby, “each one of these cases … would have to be evaluated on its own … apply[ing] the compelling interest-least restrictive alternative test.” … Not much help there for the lower courts bound by today’s decision.

A footnote in the Ginsburg dissent observes that “[r]eligious objections to immunization programs are not hypothetical.” The justice cites a challenge to New York State’s vaccination program, which a federal district court dismissed this year.

Ginsburg also cites “Compulsory Vaccinations Threaten Religious Freedom,” a 2007 memo released by Liberty Counsel, which describes itself as “a nationwide public interest religious civil liberties law firm.” The memo also lists 16 different vaccines to which it objects because they are “derived from aborted fetal tissue.” The commitment to preserving life, please note, is precisely the religious principle that the Supreme Court majority upholds in Hobby Lobby, wherein the plaintiffs objected to some contraceptives that it considered to be abortifacients, contrary to the clinical definition of abortion.

Knowingly or not, Alito and the majority have endowed for-profit corporations with religious rights that they previously lacked, thereby opening the door for…well, we don’t know what, exactly.

But keep in mind two things. One is that conservative organizations such as Liberty Counsel have spent months — perhaps years — contemplating how to enlarge the corporate religious rights that the Supreme Court was poised to grant in Hobby Lobby or a similar test case. The other is that, should the Obama administration attempt to keep contraception available to Hobby Lobby workers unchanged, conservatives are likely to object — and object fiercely. The Republican-led House of Representatives, remember, has already announced its intent to sue the Obama administration for acting in ways that haven’t been authorized by Congress.

It seems unlikely that so many conservatives would celebrate the Hobby Lobby ruling so exuberantly if it were in fact the narrow validation of religious liberty that some of them would have us think.

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