WASHINGTON, June 19, 2014 — In March, the Supreme Court heard arguments in two cases involving religious freedom and the Obamacare contraceptive mandate: Sebelius v. Hobby Lobby Stores, Inc., and in Conestoga Wood Specialties Corp. v. Sebelius. The court should deliver its opinions on both by the end of June.
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. Insurance plans are required under ACA to provide several preventive healthcare services without cost to the consumer, and contraception is included as a preventive service for women.
The Obamacare contraceptive mandate follows an Equal Employment Opportunity Commission (EEOC) ruling in 2000 that says employer insurance plans must provide contraceptives under the Pregnancy Discrimination Act of 1978. Obamacare extends that provision to all insurance plans, exempting only church organizations that hire almost exclusively within the faith to engage in religious (tax-exempt) activities.
Other church-affiliated, 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 – are not exempt, even if their owners have religious objections to contraception.
No matter how the court decides these cases, the decision will be controversial and fraught with implications. These cases include 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 is 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, including 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.
Their argument is based on the Religious Freedom Restoration Act (RFRA), a 1993 law that forbids the government from placing a “substantial burden” on the free exercise of religion except in 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.
A decision in favor of Hobby Lobby or Conestoga would extend First Amendment protections to for-profit corporations beyond the political speech protections established by Citizens United. To get there, the court must decide 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?
If the court answers “yes” to all three questions, the implications could be large. Critics claim that it would open 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.
This slippery-slope argument was central to 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 to 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. A finding for Hobby Lobby would not deny anyone contraception; that isn’t the issue. Nor would 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 such a ruling would open a “Pandora’s box” of discrimination is grounded in emotion, not in history or the facts of the case.
Joel Paul, a professor at the UC-Hastings College of Law, wrote this month in the Huffington Post, “The media misses the real point. Regardless of how the Court decides, women will still have access to contraception, and Obamacare will survive. But a decision in favor of Hobby Lobby would undermine both corporate law and the separation of church and state.”
The church and state issues strikes this writer as unsupported, but the extension of First Amendment rights to a corporation is at least very interesting. How far the individual rights of owners intertwine with the corporation raises questions about how far the liabilities of the corporation should intertwine with the owners. If the Supreme Court finds for Hobby Lobby and Conestoga, it will at the least be time to rethink corporate law.
The court may answer some of those three questions in the affirmative, but not all. If it does not, the implications of its decision will be narrower. Whatever it does, it will almost certainly be a divided court. There will be much to argue over in the wake of Hobby Lobby and Conestoga no matter how they are decided.