Hobby Lobby Decision is Quite Broad

July 1, 2014 (San Diego) Yesterday Supreme Court Decision, BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL. v. HOBBY LOBBY STORES, INC., was on first read fairly narrow. It seemed to be just about four methods of birth control, which Justice Sam Alito wrote for the the majority that:

If the Government substantially burdens a person’s exercise of religion, under the Act (the Religious Freedom Restoration Act, RFRA) that person is entitled to an exemption from the rule unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.*

It sounds like a very narrow and reasonable stand. We will not burden you more than we need to, and we believe that this is your right, since the Government has a way to deal with this. The Insurance Companies can also eat the cost and be done with it. It is cheaper than paying for pregnancy.

The decision also sounds like it is just about the four methods at play. Two pills and to intra uterine devices. None of them cause an abortion in the scientific sense of the word, but that argument was not attractive to the majority. Never mind that it science.

We now know that this is now extending to all twenty methods and the twenty methods of contraception. Lower courts are also starting to use this new decision as precedent. For example, an Alabama Broadcaster had the mandate halted and the lower Court used this decision as the basis for it.


As far as Corporate Personhood, the case is also significant for this part of the Majority writing:

Contrary to the conclusion of the Third Circuit, the Tenth Circuit held that the Greens’ two for-profit businesses are “persons” within the meaning of RFRA and therefore may bring suit under that law.

We are in the process of granting personhood to non people, and that is a dangerous step. It is also clear that part of the disagreement between the Majority and the minority was over whether a closely held corporation could be excepted becuase of the for profit model. Health and Human Services already had an agreement with not for profit, religious organizations, to be excepted from this part of the Affordable Care Act. This was an agreement reached early in the process.

Justice Anthony Kennedy wrote in the concurrence that:

As to RFRA’s first requirement, the Department of Health and Human Services (HHS) makes the case that the mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees, coverage that is significantly more costly than for a male employee.

This was one of the goals of the ACA, to make more expensive care available to women. He does agree with the Majority that there is a valid work around

Justice Ruth Bader Ginsburg wrote the dissent. In it she presented many reasons why the Majority, in her view was wrong.

In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.

In other words, the door has been left open for Corporations to get out of obligations under law, by claiming a deeply held religious belief. In her mind, the abuse of the RFRA in this way will lead to havoc in the Courts as companies sue to be freed from obligations.

Ginsburg added:

The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 856 (1992). Congress acted on that understanding when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs.

This decision is broad, is wide, and will affect the ability of women to get this health insurance. It also gets the boss into the office of the medical provider, who will not have the freedom to practice his or her craft for the betterment of the patient.

Time will tell how much havoc is introduced to the legal system, and how many companies go after this, and try to get out of legal obligations on legal grounds. What is also the case, that this is much broader than what this is pretended to be. This morning Nina Totemberg from NPR said that four other cases were sent back to the courts, and they included far more than just these four methods.

In my view, this court has signaled they will, if given the opportunity, try to reverse griswold v. connecticut which allowed women to use Contraceptives as a mater of privacy.

Categories: analysis

1 reply

  1. Can you provide evidence that Hobby Lobby will stop providing the 16 contraceptives that their health plan already approves of? I have read many articles that indicate that they will continue to provide those 16 contraceptives that they don’t consider to be “abortifacients.”

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