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Eye on the News

Dennis Saffran
After Hobby Lobby
The Supreme Court’s decision represents an expansion of freedom—with benefits for all.
8 July 2014
Photo by DangApricot

Last week’s U.S. Supreme Court decision in Burwell v. Hobby Lobby Stores shows that “Republicans want to do everything they can to have the long hand of government . . . reach into a woman’s body and make health care decisions for her,” lamented Florida Congresswoman and Democratic National Committee Chair Debbie Wasserman Schultz. Senate Majority Leader Harry Reid said that the “decision jeopardizes women’s access to essential healthcare” and vowed to “fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.” A Google search for “Hobby Lobby” and “attack on women” already yields over 5,000 results. Let’s take a look at what the Court actually ruled in Hobby Lobby, and what, if anything, its opinion means for similar cultural disputes.

The case involved two large but closely held family corporations (Hobby Lobby, an arts-and-crafts chain store, and Conestoga Wood Specialties, a cabinetmaker) whose devoutly Christian owners objected, on religious grounds, to four of the 20 methods of contraception that the ACA requires employer health-insurance plans to cover. Specifically, the companies argued that being forced to pay for coverage of two types of intrauterine device and two forms of the “morning after” pill—which they regard as abortifacients, because these methods block implantation of an already fertilized egg—would violate their religious beliefs that life begins at conception and that any form of artificial birth control after this point constitutes abortion. They did not object to (in fact, they already covered) the 16 other forms of pre-fertilization contraception for which the ACA mandates coverage, including birth control pills, diaphragms, cervical caps, and sterilization.

The ACA contraceptive mandate requires that the 20 covered birth-control methods be provided without “any cost sharing requirements.” This means they must be covered at 100 percent of expense, with no copay or deductible. Cancer drugs, on the other hand, are subject to copay and deductible requirements under Obamacare. This discrepancy epitomizes the deterioration of American liberalism from Hubert Humphrey to Sandra Fluke—from a focus on life-and-death struggles of ordinary working people to a preoccupation with sex. From the time Humphrey and Harry Truman first proposed some form of national health-care system, Democrats have spoken movingly, and with some justification, about the plight of those hit with the catastrophic costs of a serious illness or injury—middle-class Americans sitting up nights, worrying about how to pay their medical bills. But no one is worrying about how to pay for birth control pills—not when a month’s supply costs $9 at Walmart.

The Court held that imposing this mandate on the owners of Hobby Lobby and Conestoga violated their rights under the 1993 Religious Freedom Restoration Act. That act was passed in response to a 1990 Court decision, Employment Division v. Smith, which made it more difficult to bring First Amendment religious-rights claims. Prior to Smith, government action challenged as violating the First Amendment’s free-exercise clause was subject to “strict scrutiny”—a level of judicial review requiring proof of both a compelling public interest for curtailing free exercise and a demonstration that no less burdensome way existed to achieve the stated interest. However, in Smith, which involved two workers fired from their jobs for using peyote at a Native American Church service and then denied unemployment benefits because their conduct was criminal, the Court held that “generally applicable laws” imposing incidental burdens on religious practices need not meet the compelling-interest test.

Smith, a 6-3 decision written by Justice Scalia over the dissent of the Court’s most liberal members, caused a bipartisan uproar. Liberals were outraged at the rejection of the countercultural practice of an unorthodox religion. Conservatives and evangelicals understood that Scalia’s logic could be turned against them. The result was the passage of RFRA, which restored the pre-Smith test, by a 97-3 vote in the Senate and a unanimous voice vote in the House. Under RFRA, a government action imposing a substantial burden on religion must be “the least restrictive means” of achieving a “compelling government interest.”

Justice Samuel Alito’s majority opinion in Hobby Lobby found that closely held, for-profit corporations such as Hobby Lobby and Conestoga are protected under RFRA and that, even if assuring free access to IUDs and the morning-after pill constitutes a compelling interest, the ACA’s mandate is not the least restrictive way to achieve it. The government has easily available alternative methods of providing these contraceptives to employees of religiously objecting businesses, Alito noted: it could pay for them directly, or it could extend to these closely held corporations an accommodation already provided to nonprofit corporations, such as Catholic hospitals and schools, with religious objections to the mandate. Under this accommodation, the employer’s insurance provider is required, essentially as a condition of its participation in Obamacare, to fund the contraceptives itself—ostensibly without passing on any of the cost to the objecting employer.

Contrary to liberal fears that Hobby Lobby represents a vast new expansion of corporate rights, Alito’s opinion makes clear that the decision is confined to private, closely held corporations, which are essentially the alter egos of their owners; the ruling does not extend to publicly held corporations. And while, as critics of the decision point out, such closely held firms represent the vast majority of all corporations, most are small firms with fewer than 50 employees, making them exempt from the ACA.

Alito also shot down a parade of horribles envisioned by Justice Ruth Bader Ginsburg in her dissent, such as restaurant owners refusing to serve blacks based on purported religious objections to racial integration and, more plausibly, Christian Scientist employers objecting to health-care coverage for vaccinations. Bans on racial discrimination, he stated categorically, would easily survive scrutiny under the RFRA compelling-interest test. Alito’s language on vaccinations was less emphatic, but his message to potential vaccination opponents was still clear: don’t bother.

In their dueling opinions, Alito and Ginsburg danced around the potential impact of Hobby Lobby on the most important current flashpoint between modern progressive dogma and religious (and other) freedoms. In a series of cases around the country, state authorities have ordered creative professionals such as photographers, bakers, and florists with religious objections to same-sex marriage to provide personal creative services for these weddings or face crippling fines and “rehabilitation.” The Supreme Court recently declined to review a case involving a New Mexico photographer, but other cases are in the pipeline. Citing the New Mexico case, along with a 1966 case from South Carolina, in which a restaurateur claimed religious objections to serving blacks, Ginsburg asked whether RFRA would require exemptions “in cases of this ilk.” Alito declined to take the bait, but it would seem that if the state can’t force employers to fund contraception for their employees, it certainly can’t dragoon photographers into taking pictures that offend them. However, the effect, if any, of Hobby Lobby on these cases remains to be seen.

In sum, the immediate impact of Hobby Lobby—providing a religious accommodation to a handful of covered employers who object to a handful of covered contraceptives—will almost certainly be negligible. No hands will “reach into a woman’s body,” and no one will be denied their free IUDs. Yet the decision may nonetheless prove a landmark victory for freedom, especially if it helps bring an end to other coercive efforts, such as the cases involving the creative professionals. At the least, Hobby Lobby carves out space for objections to modern political orthodoxy, thus infusing real meaning into the progressive mantras of “tolerance” and “diversity.” Schulz, Reid, and other liberals should take a break from their “sky is falling” rhetoric and learn a lesson from the conservatives and evangelicals who joined with the Left in rallying against Justice Scalia’s Smith decision and enacting RFRA. Just as they realized that Smith’s limitation of freedom could hurt them, in a different context, today’s ascendant cultural liberals should realize that Hobby Lobby’s expansion of freedom could protect them somewhere down the road.

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