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Mar 25 2014

The serious implications of the Hobby Lobby case

Today the US Supreme Court will hear oral arguments in the case in which two private non-profit companies Hobby Lobby and Conestoga Wood Specialties are claiming that the health insurance plans they provide to their employees should not have to provide contraceptive coverage if doing so violates the religious beliefs of the companies’ owners.

This case has aroused a great deal of interest. On a political level, it challenges a key requirement of the Affordable Care Act. On a legal level, it represents an extraordinary expansion in the degree to which corporations can be considered persons and entitled to the rights normally granted only to real people.

In this case, these two private, for-profit companies are arguing that the provisions of the Religious Freedom Restoration Act of 1993, that says that any government action that impinges on a person’s religious freedom must have a ‘compelling interest’ and no other less restrictive choice of action to achieve its ends, should also be extended to cover companies as if they were persons.

Lyle Denniston at SCOTUSblog explains what is at issue:

[T] Court will be focusing only on whether the pregnancy-related care coverage can be enforced against profit-making companies — or their individual owners, when that is a very small group — when the coverage contradicts privately held religious beliefs.

It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.

In other words, can the religious beliefs of the owners of private, for-profit companies somehow pass through to the company itself, so that essentially the company can be considered an extension of the owners?

Elizabeth Wydra has an excellent review of what today’s cases represent, concluding that “accepting the claims of Hobby Lobby and Conestoga Wood would mark an unprecedented departure from longstanding principles of constitutional jurisprudence and corporate law.”

Marty Lederman argues that that there are two major features about this case. The first is that the companies are “seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.”

Of course, the fact that no court has ever afforded a for-profit employer a religious exemption at the expense of its employees does not necessarily mean that there should never be such a case. But if the Court were to do so here, it would surely be a groundbreaking departure from the judiciary’s (and Congress’s) historical practice, one that could pave the way for religious exemption claims by large commercial enterprises with respect to many other statutes, including nondiscrimination requirements, zoning regulations, taxes, and so on.

The second is that there is no “contraception mandate” in the law, despite much media statements to that effect. He says that employers are not forced to provide contraceptives to their employees because employers who strongly object to it have the option of not providing any health insurance to their employees at all, since the law does not demand that companies provide health insurance.

Yes, the law does impose a legal requirement – many of them, in fact – on all health insurance plans. Nevertheless, contrary to common wisdom and popular rhetoric, there is no “employer mandate” to offer employee health plans, no matter how large the employer. Employers, both large and small, may lawfully decline to offer such plans. Indeed, the direct effect of doing so ordinarily would be a cost savings to the employer, which is why many employers will choose this option. And in such a case the employees will hardly be out of luck: They will then be able to purchase affordable health insurance on an exchange – with generous government subsidies, if necessary – and the insurance plans they purchase will meet all the applicable federal standards, including contraception coverage.

To be sure, many other employers will choose to continue offering employee plans, for a complex array of reasons, most of which are not a function of federal law. And I have argued (see my Balkinization Hobby Lobby posts III, III-A, III-B, and IX) that the Hobby Lobby and Conestoga Wood employers, in particular, have failed to plead facts sufficient to demonstrate that federal law imposes substantial pressure on them to decline that option – a pleading inadequacy that may be fatal to their RFRA claims. But whether I am right about that or not, it is still the case that if an employer does not wish to include all the incidents of insurance that federal law requires be included in all plans, its option is not nearly as draconian as having to reduce its workforce to fewer than fifty employees (a response that would not have the desired effect, in any event, because small employer plans must also include contraception coverage) or face bankrupting fines: It has the much less draconian legal option of increasing its employees’ wages in lieu of such insurance coverage . . . in which case the employees will be able to purchase an insurance plan that includes the same federally mandated minimum protections to which everyone else is entitled.

I think he makes a good case. The government has already caved on this issue to explicitly religious organizations such as churches by allowing them to opt out of the ACA’s requirement though, as we saw with the University of Notre Dame and Little Sisters of the Poor cases, the religious feelings of these groups are so delicate that even filling out a simple form to get the exemption constitutes an unbearable shock to their nervous systems, a ridiculous argument that the courts rightly rejected, at least in the case of Notre Dame, though the Little Sisters case is still pending appeal.

There is no limit to the special pleading by religious groups to be exempt from the requirements that the rest of us must live by. I think the Obama administration has already gone too far in accommodating them. I hope the US Supreme Court does not go even further.

16 comments

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  1. 1
    Crimson Clupeidae

    I would like someone to claim that it’s their religious belief that everyone should be provided with contraception. Just to counter these assholes.

    I don’t think HL is going to win this case, for the very reason that even the densest of the SCOTUS judges should realize that it would open a huge can of worms.

  2. 2
    Ibis3, Let's burn some bridges

    What about the religious freedom of the employees? What if my religion says that I must do everything I can, medically speaking, to preserve my own life and my employer is a Jehovah’s Witness that forbids coverage for blood transfusions or use of blood products? What if my employer is an adherent of Chinese alternative medicine or homeopathy for religious reasons and refuses coverage for all “allopathic” medicine?

    What if I, as a worshipper of The Goddess, believes that my right to reproductive health and choice is sacred but my boss is a misogynist fuck who wants to control my reproduction as though I were his piece of livestock rather than a cashier in his store?

  3. 3
    twosheds1

    Obviously there are an infinite number of “what if” scenarios, but I wonder: where in the Bible is contraception forbidden? I know God said “be fruitful and multiply,” be he specifically said that to Adam and Eve. It wasn’t a general commandment. If Hobby Lobby, et al, claim contraception is verboten on religious grounds, then they should have to prove it, and not with a arcane interpretation of an obscure passage.

    Additionally, the can of worms I see opening is allowing employers to pick and choose in general what procedures their health care plans will cover. What if they chose to not allow child birth coverage, gynecological exams, etc.? I can see a misogynistic employer using this as a way to ensure that women don’t want to work at his business without explicitly saying so.

  4. 4
    raven

    This case is about religious freedom.

    The religious freedom of the employees. Why should I or they conform to the demented and false beliefs of the Hobby Lobby CEO?

    He calls the birth control pill and the Morning After pill, “abortion pills”.. They aren’t. They inhibit ovulation. He could look up the science in a few minutes but that would interfere with his nonstop whining. BTW, the Hobby Lobby CEO only has two kids. He must use his personality as a birth control method.

    So what happens next. A Moslem CEO fires all the employees that drink alcohol or eat pork. A Hindu CEO files all the cow eaters. An atheist CEO fires all the xians. Oops. They really should think things through sometimes.

  5. 5
    doublereed

    We need to destroy corporate personhood. The idea of corporations having constitutional rights is baffling and idiotic. The rights of corporations should be fully up to the majoritarian public. None of this First Amendment bullshit.

    This is just another reason why I support Wolf-PAC.

  6. 6
    Dunc

    There’s also the not-insignificant point that, since health insurance is part of a compensation package, this is essentially a case of employers arguing that they have a right to veto how their employees use their compensation. It’s really not that different to arguing that they should be allowed to prevent their employees from spending their wages how they please.

  7. 7
    Pierce R. Butler

    Religion schmeligion – these cases involve the amount of control employers have over employees in their private lives, and perfectly exemplify good old-fashioned class warfare.

    Not that the lawyers for either side would dare to allow a hint of such ideas in their arguments today or ever.

  8. 8
    moarscienceplz

    The Hobby Lobby people are assholes of course, but this really illustrates why we should decouple healthcare from employment. I shouldn’t have to accept a crappy plan just because it’s what my employer thinks I should have, and I shouldn’t have to give up a good plan if I choose to change employers.

  9. 9
    smhll

    So, if I develop uterine cancer and need a hysterectomy, or if my gyno thinks an IUD is the best way to rebalance my hormones before I develop uterine cancer, Hobby Lobby (if they employed me) conveniently wouldn’t cover this necessary care for me because the treatments also prevent conception? How much does a hysterectomy cost? I can’t imagine it’s cheap.

  10. 10
    richardrobinson

    I see this as a privacy concern. It’s not any of an employer’s business what a doctor is prescribing to a patient or why.

    I expect the fact that they could just stop providing health insurance is going to be what scuttle this case. They aren’t being compelled to pay for contraceptives because they aren’t being compelled to pay for anything at all. It’d be like claiming a religious exemption from wearing a seat belt. There is no law that requires anyone to ride in a car.

  11. 11
    Mano Singham

    @richardrobinson,

    The car-seat belt is a good analogy.

  12. 12
    Chris J

    More like claiming a religious exemption from your employees wearing a seat belt, or perhaps saying you shouldn’t have to recoup traveling expenses because your employees have to wear a seat belt in a state where seat belts are mandatory, or saying a piece of legislation that requires traveling expenses be covered either by the company or by the state is infringing your religious beliefs because traveling by car involves wearing a seat belt.

    Maybe that’s too on the nose.

  13. 13
    smrnda

    An issue I have been pointing out is that some of these employers have stated they will cover contraception if it’s for a medical purpose other than contraception, but the idea of them seeking this information is a clear violation of the existing law: HIPAA.

  14. 14
    Matt G

    Does Hobby Lobby check to make sure female employees are virgins before their weddings, and stone them to death if they are not? Contraception may not be in the Bible, but stoning non-virgins is. They aren’t being selective about Bible passages, are they…?

  15. 15
    Heidi Nemeth

    Were I an employer whose religion stated impotent men can not have sex, would SCOTUS consider a case where I try to say the insurance plan I provide my employees must not cover Viagra or penile implants?

    Why is insurance coverage of men’s sexual health never an issue, but coverage of women’s sexual health always tied up with the rights of potential progeny – and religion?

  16. 16
    Crimson Clupeidae

    Heidi Nemeth: Because…religion. And controlling uppity women.

    That’s pretty much it, but they can’t say the last part out loud.

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