The Supreme Court’s June 30 decision in Burwell v. Hobby Lobby Stores has produced more commotion than can be explained by either the holding or its likely effects. A good deal of the hubbub can be ascribed to the subject matter: contraceptive services.
Hobby Lobby is a corporation owned and operated by a family (parents and three children) with sincere religious objections to abortion. Health and Human Services (HHS) regulations implementing Obamacare require coverage for some 20 contraceptive services, including four methods—two “morning-after” pills and two IUDs—that prevent a fertilized egg from surviving (so-called “abortifacients”). The Court, by a depressingly familiar 5–4 margin, allowed Hobby Lobby to opt out of paying for coverage for the abortifacients. (Hobby Lobby did not seek to deny coverage for the 16 other contraceptive methods that merely prevent fertilization, though future objectors may do so.)
Hobby Lobby is an easy case. The Religious Freedom Restoration Act of 1993 (RFRA) provides that a governmental rule may not “substantially burden a person’s exercise of religion.” However, that principle may be overridden if the rule is “the least restrictive means” of furthering “a compelling governmental interest.”
Refusing to pay for contraceptive insurance may not be an “exercise of religion” in normal parlance, but RFRA defines “religious exercise” broadly to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”
So the question came down to whether the HHS regulations were the “least restrictive means” of furthering what was assumed for purposes of the case to be the compelling governmental interest in providing contraceptive coverage. But here HHS had basically conceded the issue: It had earlier devised a way for insurers to provide contraceptive coverage (including abortifacients) to employees of religious organizations without requiring those organizations to pay for the coverage. The Court saw no reason the same work-around could not be offered to for-profit corporations whose owners had similar religious objections. With that issue out of the way, the Court had little difficulty concluding that the Hobby Lobby owners’ exercise of their religion—by declining to pay for the four abortifacients—would be substantially burdened, since there were massive financial penalties for noncompliance.
A good deal of the Court’s opinion, and a spirited dissent by Justice Ginsburg, deals with a different question: Can a corporation be the kind of “person” that can engage in an exercise of religion? Plainly “No,” and some in the media have seized on this impossibility to argue that Hobby Lobby is irredeemably wrong-headed. (The same criticism is often leveled at the decision in Citizens United that it gives corporations free speech rights.) But the question, clearly dealt with in the Court’s opinion, is whether individuals who own or operate a corporation can engage in an exercise of religion, and here the answer is plainly “Yes.” Whatever you think of the results in Hobby Lobby or Citizens United, they show a commendable tendency of the Court’s conservatives to look through corporate “personhood” to ask what individual rights and values are at stake. As Justice Alito wrote in Hobby Lobby,
"A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."
(Justice Ginsburg nonetheless argued that a corporation is not the type of “person” covered by RFRA, but only Justice Sotomayor was willing to join that part of Ginsburg’s dissent.)
Given RFRA, and the HHS regulations granting an exception for religious organizations, the result in Hobby Lobby seems inescapable. Why then did the Court’s four liberal Justices not see it that way?
The current Court has an odd religious makeup: six nominal Catholics (the five conservative Justices plus Sotomayor) and three nominal Jews. (“Nominal” because I don’t know the depth of their actual religious beliefs.) One suspects that some in the majority may have been swayed by pro-life and anti-Obamacare views, just as some of the dissenters may have been swayed by pro-choice, pro-Obamacare views.
A great deal of what we call argument is really just after-the-fact rationalization. Something happens that requires us to take a stand, we react viscerally, and then concoct an argument to justify our initial response. No one—not me, not you, not the Supreme Court—is immune from such psychological pressures. The trick is to be self-aware enough to see your emotional responses—“Protect Religion,” “Protect Women’s Rights”—for what they are, and then to be as dispassionate as you can about the arguments.
Contraception in general, and abortion in particular, are hot-button issues. I’m pro-choice and (with reservations) pro-Obamacare, and I’m an atheist as well, so my visceral reaction to the Hobby Lobby decision was negative. But after reading RFRA, I found it difficult to fault the Court’s reasoning.
Unfortunately, constitutional law with all its vagaries gives the judiciary lots of leeway to construct arguments to support their gut reactions. But Hobby Lobby involved statutory interpretation, which should be less susceptible to this sort of monkey business. Here the liberal minority, especially Ginsburg and Sotomayor, ignored the statue and went off the deep end. (The conservative majority have had their own fair share of jurisprudential cockups, but Hobby Lobby gave them a better shot at an argument that could pass dispassionate intellectual muster.)
In any event, and despite what you may have read, Hobby Lobby is unlikely to affect employees’ access to contraception, especially if HHS extends its current religious organization exception to for-profit corporations. Even if HHS doesn’t act, few for-profit corporations will be able to follow Hobby Lobby’s lead; there would have to be virtual unanimity among the owners, which is rarely possible outside of family-owned corporations. Unlike Hobby Lobby (which has 13,000 employees), most family-run corporations are small affairs. Corporations with fewer than 50 employees are already exempt from Obamacare, so Hobby Lobby is unlikely to be of much practical importance.
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Extended Postscript: Two days after Hobby Lobby came down, the Court enjoined HHS from requiring Wheaton College to send its insurer the HHS form that allows religious organizations to opt out of contraceptive coverage. Wheaton argued that sending the required form to the insurer would involve it in authorizing the insurer to cover the contraceptive practices Wheaton objected to (again, abortifacients). Wheaton argued that it should only be required to notify HHS (not the insurer) by letter.
It sounds like a perfectly silly argument to me, but these are matters of faith, not reason. And in any case, Hobby Lobby spoke plainly to the issue: HHS had argued that the connection between the required actions and the end that Hobby Lobby’s owners believed to be morally wrong was too attenuated. But since the families asserted that providing the insurance coverage lay on the forbidden side of the line, the Court held that its only function was to determine whether the line drawn reflected an honest conviction; it was not for the Court to say that the belief was “mistaken or insubstantial.”
The Wheaton College order would not have attracted my attention were it not for a noisy dissent from Justice Sotomayor (in which Justices Ginsburg and Kagan joined) that became the New York Times two-day lead story (July 4 and 5—both slow news days). While part of Sotomayor’s dissent was a technical legal argument about the appropriate grounds for issuing a preliminary injunction, her more eye-catching claim was that the majority had ignored its own still-warm precedent from Hobby Lobby.
Sotomayor made two arguments, both flawed. First, she argued that Wheaton’s having to send the innocuous form to the insurer wasn’t a “substantial” burden, as required by RFRA. But for Wheaton to exercise its religious principles, it would, in lieu of sending the form to its insurer, have had to cancel the insurance, which would have led to massive fines. Those fines were the substantial burden in Hobby Lobby, and would have been the substantial burden for Wheaton. Sotomayor’s real argument is just that HHS wasn’t asking all that much of Wheaton, but it’s clear from Hobby Lobby that it’s Wheaton that gets to decide how serious the moral issue is.
Sotomayor’s second argument is that the Court in Hobby Lobby had approved the HHS regulation for religious organizations (with its requirement for notice to the insurer) as satisfying RFRA by providing a least restrictive means of achieving the governmental interest in contraceptive coverage. Therefore, Wheaton was obliged to accept it. But Hobby Lobby was (presumably) willing to sign the HHS form and send it to the insurance company, whereas Wheaton was not. The issue was therefore whether there was a less restrictive means of allowing Wheaton to exercise its religious principles, not Hobby Lobby’s. The Court was able to approve Wheaton’s simply sending a letter to HHS as providing that less restrictive means.
The July 5 New York Times article began as follows:
"WASHINGTON—The Obama administration, reeling from back-to-back blows from the Supreme Court this week [Hobby Lobby and Wheaton College], is weighing options that would provide contraceptive coverage to thousands of women who are about to lose it or never had it because of their employers’ religious objections."
Given that HHS need only offer a limited number of family owned corporations the same procedures it grants to the larger number of religious organizations (Hobby Lobby), and will in some cases have to notify the insurance company itself rather than relying on the organization to do so (Wheaton College), there seems little cause for this sort of panic. The Times gets closer to the real issue eight paragraphs down:
"[T]he administration has another motivation to act as quickly as possible: It is eager to court the votes of women dismayed by the rulings. The Democratic National Committee is already urging voters to fight back against the Hobby Lobby decision and to “stand up for Obamacare” in the November elections"
So while the Hobby Lobby and Wheaton College decisions are virtually compelled by RFRA and current HHS regulations, and while their effects on insurance coverage are likely to be limited, the decisions can be spun as attacks on women’s contraceptive rights, especially since the Times did not highlight that Hobby Lobby employees would retain coverage for contraceptive services other than abortifacients. That the DNC and the Times might want to use a legally unobjectionable decision to rally women in favor of Obamacare and contraceptive rights is understandable. A Supreme Court Justice is also entitled to feel deeply about these issues, but should not let his or her personal feelings prevail over a thoroughly sensible reading of the law.