Supreme Court rule nibbles at ObamaCare contraception mandate, rules in favor of...

Supreme Court rule nibbles at ObamaCare contraception mandate, rules in favor of Hobby Lobby

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WASHINGTON, June 30, 2014 – The Supreme Court delivered opinions today on two cases it heard in March: Burwell v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. v. Burwell. Both cases involved religious freedom and the Obamacare contraceptive mandate.

Burwell v. Hobby Lobby was decided 5-4 for Hobby Lobby. Justice Alito wrote the lead opinion for the majority. The decision means that female employees of firms whose owners have religious objections to birth control will have to find it elsewhere.

The Court’s ruling is actually more limited than widely believed. It is restricted to corporations in which ownership is limited mainly to a family that holds religious beliefs against contraception. It is unlikely that a publicly traded corporation would qualify for the exemption granted to Hobby Lobby and Conestoga.

Alito’s opinion seems to decide an issue that was not explicit in either case: When business owners whose religious views require an accommodation receive it, is a second accommodation required that will make the contraceptive mandate legal?

The majority was at pains to point out that the government can easily provide ways for women to receive contraceptive coverage that do not involve direct provision by Hobby Lobby. The insurance company or an internal plan administrator can take on the obligation to provide coverage, either by absorbing the cost itself, or by obtaining a government subsidy to cover it.

Justice Alito wrote, ”An approach of this type … does not impinge on the [companies’ or owners’] belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves [the government’s] stated interests [to assure that women have access to contraception and birth-control services] equally well.

Alito added that the dissent had identified “no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.”

Justice Kennedy, in a separate concurring opinion, emphasized the point. “[The] existing accommodation the government has designed, identified, and used for circumstances closely parallel to those presented here … RFRA requires the government to use this less restrictive means.”


The contraceptive mandate is a provision of the Affordable Care Act (Obamacare) that requires insurance plans to provide contraceptives without out-of-pocket expenses to beneficiaries. It is included in the provision on preventive care services as a preventive service for women.

The Obamacare contraceptive mandate follows an Equal Employment Opportunity Commission (EEOC) ruling in 2000, that employer insurance plans must provide contraceptives under the Pregnancy Discrimination Act of 1978. Obamacare extends that provision to all insurance plans, exempting only churches and religious employers who hire almost exclusively members of the same faith for religious (tax-exempt) activities.

Other religious non-profit organizations (most notably hospitals and universities) are not entirely exempt. They aren’t required to provide contraceptives directly, but they must provide them through third parties. This requirement is being litigated.

For-profit firms – like Hobby Lobby – have not been exempt, even if their owners have religious objections to contraception. The Court’s decision is fraught with implications. These cases included several highly potent political issues, most notably Obamacare, religious freedom, corporate “personhood” (an issue raised by Citizens United), abortion, and the “war on women.”

Interestingly, neither case was about contraception itself. Members of the Green family, which owns Hobby Lobby, are evangelical Christians, while the Hahn family, owners of Conestoga Wood Specialties, a cabinet-maker, are Mennonites. Neither objects to providing contraception to employees, and both already offered it in their insurance plans before Obamacare was passed.

What they did not offer were contraceptives they consider abortifacients, specifically Plan B and Ella – two emergency contraceptives that prevent pregnancy when taken within 24 hours after sex – and, in the case of the Greens, IUDs.

Both families object to providing contraceptives that, they believe, induce abortion. That includes preventing implantation of a fertilized egg in the woman’s uterus. Federal law forbids funding abortions with public funds. If the contraceptives that Green and Hahn object to are abortifacients, then their supporters argue that they should be exempt from the contraception mandate.

“These abortion-causing pills go against our faith, and our family is now being forced to choose between following the laws of the land that we love or maintaining the religious beliefs that have made our business successful and supported our family and thousands of our employees and their families,” said Hobby Lobby founder David Green in a conference call to reporters.

The Religious Freedom Restoration Act (RFRA), a 1993 law forbids the government from placing a “substantial burden” on the free exercise of religion without tailoring it to be the narrowest way to achieve a compelling government interest. At issue in the Hobby Lobby and Conestoga cases is whether religious rights can be exercised by a corporation.

Today’s decision extends First Amendment protections to for-profit corporations beyond the political speech protections established by Citizens United. To get there, the Court decided three questions: Can a for-profit corporation claim First Amendment rights to free exercise of religion? If it can, does the contraception mandate substantially burden Hobby Lobby or Conestoga? If it does, is there a compelling government interest to do so?

The Court answered “yes” to all three questions, but they did it more narrowly than they might have. In essence, the corporation receives First Amendment protection if it is closely tied to the owning family. Critics claim that this opens the way for businesses to deny coverage for surgery, for instance; Jehovah’s Witnesses reject blood transfusions, so might reject major surgery because of the potential need for blood. Beyond health care, it could open the way for businesses to refuse public accommodations on the basis of sexual orientation.

However, the Court’s opinion was crafted to apply specifically to contraception. There are fears that the decision could be made more sweeping, but that isn’t the case at present.

This slippery slope argument was the gist of Justice Kagan’s questions during oral arguments. She asked why the RFRA couldn’t be used by companies to claim that their religious beliefs permit wage discrimination by sex, or that they permit them to ignore child labor laws.

Justice Scalia responded that RFRA has been on the books for 25 years, then asked how many such cases had been brought. The answer was, “very few.” If after 25 years we haven’t started sliding down that slippery slope, perhaps the slope isn’t slippery after all. Critics counter that a Supreme Court decision for Hobby Lobby or Conestoga might provide the necessary grease.

Immediate concerns of Hobby Lobby’s critics are certainly overblown. Today’s decision does not deny anyone contraception; that was never the issue. Nor does it open a clear path for discrimination in pay or accommodation on the basis of religious belief; the last two decades indicate that there is no impetus in that direction. The notion that the ruling will open a “Pandora’s box” of discrimination is grounded in emotion, not history or the facts of the case.



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