Today, the Supreme Court of the United States ruled 5-4 in Burwell v. Hobby Lobby Stores, Inc. to uphold that the Religious Freedom Restoration Act (RFRA) can exempt a family-owned, or closely-held, company from a federal regulation requiring that employers provide coverage to their female employees for certain types of birth control deemed, in the religious opinion of employers, capable of facilitating an abortion.
The basis for the Court’s decision to exempt corporations from the Affordable Care Act contraception mandate hinges on the belief that the regulation poses an unnecessary burden on for-profit corporations that have religious objections, while giving nonprofits and religious companies a pass. As you recall, in 2013 the U.S. Department of Health and Human Services (HHS) exempted places of worship and nonprofit organizations from having to provide contraceptive coverage to employees. This accommodation ensures the employee doesn’t have to pay, moving the burden of payment from the employer to a third party — the insurer, or the government through a subsidy. The Court determined:
The government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain them due to their employee’s religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraception mandate. That accommodation does not impinge on the plaintiff’s religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves the HHS’ stated interests.
The Hobby Lobby decision centered specifically on four types of birth control out of the 20 contraceptive methods approved by the Food and Drug Administration (FDA) that are covered under the Affordable Care Act (ACA). These four were the two “morning-after” pills Plan B and ella, as well as two intrauterine devices (IUDs) — all of which are considered effective emergency contraceptives. That these methods were incorrectly interpreted in the decision as being capable of causing an abortion (“by preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus”), when in fact they work by preventing fertilization, is irrelevant, as the decision today is broad enough to endanger any type of birth control deemed contrary to an employer’s religious beliefs.
Let us not forget that to Catholics, any type of birth control is a sin with the exception of “natural family planning,” or the fact that daily birth control pills can be used in place of an emergency contraceptive through the Yuzpe regimen, making them objectionable to any denomination whose religious beliefs are offended by “morning-after” pills like Plan B and ella.
Even more troubling is the nature of the objection raised by the two employers, Hobby Lobby and Conestoga Wood Specialties. As summarized in the majority opinion by Justice Samuel Alito, this case focused on “a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but has the effect of enabling or facilitating the commission of an immoral act by another.” If it is “immoral and sinful for [religious employers] to intentionally participate in, pay for, facilitate, or otherwise support these drugs,” how would filing for accommodation from the government not be seen as a form of participation, in itself? The employer may not be paying for the birth control, but filing would, through other means, enable any type of contraceptive to be provided.
As Lyle Denniston writes on the SCOTUS blog, “Some whose religions tell them to have nothing to do with some forms of birth control (often on the premise that they amount to a form of abortion) believe that even the filing of that formal declaration is itself an act of participation in the provision of those very services for people on their payroll. The form sets in motion, this argument goes, the entire process that results in birth control being made available to the workers for free.”
When asked at oral argument whether receiving an accommodation such as that non-profits receive was acceptable, counsel for the plaintiffs responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to that.”
This won’t end here. And though the Court was specific that the decision only deals with contraceptives, and cannot be extended to vaccinations, blood transfusions, and other insurance-coverage mandates (because the public interest is obvious and overwhelming in terms of most everything except female reproductive health), it won’t be long before for-profit corporations’ new ability to exercise their freedom of religion brings us all kinds of other challenges. This decision only expands RFRA protections to include for-profit corporations that are family-owned or “closely-held,” meaning that more than half of their stock is owned by fewer than five people, but that is still some 90 percent of American businesses.
Lest the words “closely-held” suggest “small” to you, allow me to remind you that Larry Page and Sergey Brin “closely hold” 56.7 percent of the voting control of the tech giant, Google.
“No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others — here, the very persons the contraceptive requirement was designed to protect,” Justice Ruth Bader Ginsburg points out in her dissenting opinion. “Any decision to use contraceptives made by a woman covered under Hobby Lobby or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults. […] Moreover, the Court’s reasoning appears to permit commercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contraceptives.”
She added that the Court’s decision burdens the female employees of religious corporations, by requiring them to educate themselves about and sign up for the government programs that would make birth control available to them, and pointed out that Title X of the Public Health Act, which is the only source of federal funding for family planning services in the nation, is not designed to absorb the cost of those who are insured.
Clinics funded by Title X average $257 per client per year, and serve over five million low-income people. In 2008 alone, these services saved taxpayers an estimated $3.4 billion in Medicaid costs. Despite this and the fact that Title X-funded clinics are the entry point for some 7.1 million young and low-income women into the health care system, there have been numerous attempts by Republicans to defund Title X.
While unsuccessful so far, it bears noting that in 2014, Title X was given $286,400,000 in funding — 31 million less than it received in 2010. As long as Title X remains a target of conservative ideologies that wish to defund it, it is not a good solution to the birth control coverage issue, not to mention that Ginsburg is right — the number of people seeking Title X-funded assistance due to lack of coverage already exceeds the funding that is available.
In response to the alarming expansion of corporations’ personhood, which four years ago gave them free speech in Citizens United v. Federal Election Commission, Ginsburg wrote in her dissenting opinion:
The Court’s “special solicitude to the rights of religious organizations,” however, is just that. No such solicitude is traditional for commercial organizations. Indeed, until today, religious exemptions had never been extended to any entity operating in “the commercial, profit-making world.” The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations are not drawn from one religious community, Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations.
[…] In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obligation. One might ask why the separation should hold only when it serves the interest of those who control the corporation.
[…] The Court made important points in [United States v.] Lee: “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” […] the Court recognized in Lee that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contraceptives in question. But that choice may not be imposed on employees who hold other beliefs.
More than anything else, it’s this expansion of the religious rights of for-profit corporations that will impact the American legal landscape, going far, far beyond reproductive rights.
Header image by Mark Fischer.