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.
* * *
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.
—Stan
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