The infamous Hobby Lobby decision satisfied nobody. On June 30 five old men on the Supreme Court decided that corporate owners can overrule physicians and insurance regulators over whether their female employees can receive contraceptive treatment.
The court majority agreed with attorneys for Hobby Lobby Inc. and other bosses who claim that the contraceptive “mandate” imposed by the US Department of Health and Human Services as part of the Affordable Care Act was a “substantial burden” on the religious freedoms of their closely-held corporations and violates their rights under the Religious Freedom Restoration Act of 1993.
As Justice Ruth Bader Ginsburg wrote in her dissent, there is no precedent on behalf of the majority’s assertion that secular, for-profit corporations can be “persons” under RFRA. “The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities,” she wrote.
The Hobby Lobby ruling, written by Justice Samuel Alito, seemed to allow closely-held corporations to object to four specific types of birth control — including IUDs and Plan B — because the business owners inaccurately if sincerely consider them to cause abortion. (The contraceptives at issue prevent a fertilized egg from implanting into the lining of the uterus. A woman is not considered pregnant until the developing embryo successfully implants in the lining of the uterus. The only drug approved to induce abortion is RU-486 and it is not on the FDA’s list of approved contraception.)
A day after Hobby Lobby, the Court’s resolve began to crack. On July 1, the court indicated that its ruling also applies to for-profit employers who object to any of the 20 forms of birth control included in the ACA’s contraceptive mandate, not just the four methods at issue in the Hobby Lobby case. The Court ordered three appeals courts to reconsider cases in which they had rejected challenges from corporations that object to providing insurance that covers any contraceptive services at all.
And the Court in the Hobby Lobby case seemed to validate the ultimate goal of providing contraceptives when Justice Alito wrote for the majority that the government had to use the “least restrictive alternative.” That means that if there is a less burdensome way to implement the law, it needs to be used. The majority pointed to a workaround the administration had come up with to accommodate religious nonprofits. If there are objections to a medical treatment, third parties will provide coverage to the employees.
In case of contraceptives, the nonprofits must fill out a document that declares that paying for any or all of the 20 devices and methods approved by government regulators would violate their religious beliefs. Then their insurers or third-party administrators would take on the responsibility of paying for the birth control, and would get reimbursed by the government through credits against fees owed under other parts of the health law.
But many groups still object that filling out the government Form 700 is akin to signing a permission slip for evil activity.
In an unsigned order issued July 3, moments before they adjourned for their summer recess, the Court suggested that the nonprofit workaround might also be unconstitutional. “Overnight, the cure has become the disease,” Dahlia Lithwick and Sonja West wrote in Slate.com (July 4). “Having explicitly promised that Hobby Lobby would go no further than Hobby Lobby, the court went back on its word, then skipped town for the summer.”
In the new case, the Court granted Wheaton College, a Christian college in Illinois, a temporary exemption from the requirement that it use Form 700. The Court said the interim order would not affect the ability of employees and students to obtain, without cost, the full range of FDA approved contraceptives, since the government already knew the college objected.
More than four dozen faith-affiliated charities, colleges and hospitals that oppose some or all contraception as immoral have filed lawsuits to relieve them of the obligation to pay, even indirectly, for birth control.
“Anything that forces unwilling religious believers to be part of the system is not going to pass the test,” Mark Rienzi, senior counsel for the Becket Fund for Religious Liberty, which represents many of the faith-affiliated nonprofits, told the Associated Press. Hobby Lobby Inc. also is a Becket Fund client.
The Supreme Court will be asked to take on the issue in its next term, which begins in October.
The Wheaton College injunction drew a furious reaction from the three female Justices, Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan. “Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote in the dissent. “Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates [the Religious Freedom Restoration Act] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position.”
The Court’s action, she added, even “undermines confidence in this institution.”
Justice Sotomayor wrote that the majority, which acted on an emergency application, had not only introduced pointless complexity into an already byzantine set of regulations but had also revised its Hobby Lobby decision.
Justice Sotomayor said the ruling reached beyond Wheaton and could lead to similar results at many other nonprofit religious organizations that have similar concerns. “The issuance of an injunction in this case will presumably entitle hundreds or thousands of other objectors to the same remedy,” she wrote.
“Not everyone was fooled by the majority’s promise that the decision in Hobby Lobby was narrow,” Lithwick and West wrote. “But the speed with which the Court has loosened the dam on this is stunning. While the court has told us that we are not allowed to question the sincerity of corporations’ professed religious beliefs, we remain free to question the sincerity of the Court’s pinky promise that the Hobby Lobby decision would have a limited scope. At the end of this term, many people sighed a breath of relief that the outcome of Hobby Lobby was not as bad as we’d feared. It will be.”
Senate Democrats have floated a bill to reverse the Hobby Lobby decision, but in the face of Republican intransigence they might as well move toward single-payer health coverage so that businesses and religious organizations don’t have to worry about being complicit in the medical procedures their employees get.
There are bills in Congress, including Rep. John Conyers’ longrunning HR 676 and Sen. Bernie Sanders’ S 1782, that would expand Medicare to cover everybody, but they are given practically no chance of going anywhere. However, the Affordable Care Act allows states to seek waivers to implement their own single-payer plans starting in 2017. Vermont has enacted such a plan and is working on its Green Mountain Care, with the main challenge being how to pay for the estimated $2 billion cost (which would still be less than the $2.5 billion Vermonters pay in private premiums and out-of-pocket for health care).
To get the waiver, a state must demonstrate that its public option would provide coverage at least as good, for at least as many people, as the ACA would, and not add costs to the federal budget. The federal government would provide funds to the state that equal what it would spend under the ACA. See Public Citizen’s “Road Map to ‘Single Payer’”.
Ultimately, with the court teetering on a 5-4 balance, the threadbare Hobby Lobby decision underscores the importance of Democrats keeping control of the Senate this November. The right vacancy on the court in the next two years could clear the way to reverse a decade of bad decisions. But not if Sen. Charles Grassley (R-Iowa) is Judiciary chairman.