06 July 2014

Freedom of Religion and Obamacare: The Hobby Lobby Decision Explained

Because I feel it's necessary, based on all the misinformation and puzzlement I have been hearing, here is a plain-English explanation of what went down at the United States Supreme Court last week. I hope it will explain for laypersons, in and out of the United States, what everyone is talking about, with as little politicizing and legalese as possible. (If you're a regular reader, you already know what I think.)

I am an attorney licensed to practice in New York and New Jersey, and various federal courts, including the Supreme Court. I have 20 years of experience with constitutional issues. That being said, please be advised that this post (along with any others that may follow on the subject) represents my own interpretation of the Supreme Court's decision and should not be mistaken for legal advice. If you have specific questions, please consult directly with an attorney in your state.

A Little Legal Background. (I apologize for this, but it's necessary for a clear understanding of the issues.)

The First Amendment of the United States Constitution guarantees citizens, among other things, the right to free exercise of religion. As anyone could have predicted, though, the secular laws immediately began coming into conflict with people's religious practices on a fairly regular basis. Until 1993, the federal courts generally resolved these conflicts with a two-part test. They asked whether the law in question substantially burdened someone's right to practice their religion; if it did, they then inquired whether the law was needed to serve a compelling government interest. If it was, it would prevail over the individual's right to worship freely.

In 1993, the Supreme Court decided the case of Employment Division v. Smith. In that case, two Native American social workers had ingested peyote as part of a religious ritual, and when they subsequently showed up at work, they were fired from their jobs. When they applied for unemployment insurance, their claims were denied on the ground that their conduct - ingesting the peyote - had been illegal. When their case reached the Supreme Court, the Court held, under the "balancing test" I just explained, that while the law against peyote did burden the workers' rights to use the drug in their sacramental ritual, the anti-peyote law served a compelling government interest that outweighed that right. In other words, the peyote-eaters lost.

The holding in Smith caused a fair amount of outrage in legal and religious circles. Think about it: many Christians and Jews also regularly serve alcohol to minors as part of their rituals. That's illegal, but it's generally overlooked because of the small amount of the substance involved and because the practice is so common. Shouldn't the Native Americans, people reasoned, have their peyote ceremony overlooked too? And if not, shouldn't everyone be nervous about getting fired for taking part in routine religious rituals on the weekend? Yikes.

And so, in response, President Clinton signed into law something called the Religious Freedom Restoration Act (referred to as the RFRA). The RFRA changed the balancing test: now, the government could not substantially burden any religious practice unless that burden was the least restrictive means of serving a compelling government interest. That should do it, everyone thought. Least restrictive means. Compelling government interest. That's a very, very tough test for the government to pass.

Very Quickly - Birth Control Review

Just a quick note about the whole birth control thing - a brush-up on basic human reproduction, if you will, along with an explanation of some common ideology. You'll need this too.

If you believe that life begins at conception, you belong to one of two camps on the issue. There are people who believe that a human being is created the moment a human egg meets a human sperm. This is the most conservative group. And then there are people who believe that a human being is created when the mass of cells resulting in that meeting implants in the wall of a human uterus and starts growing (usually a couple of days later). Both groups oppose voluntary termination of established pregnancies (i.e., abortion), but the latter group is a little more flexible about birth control. That's because there are two common ways that birth control can operate: by preventing the meeting of egg and sperm in the first place (like a condom or a diaphragm, or sterilization surgery), or by preventing the recently-united egg-and-sperm mass from implanting and continuing to develop (like a Plan B "morning-after" pill or an IUD). Most traditional, taken-before-the-fact birth control pills operate both ways: they prevent ovulation, but they also make the wall of the womb inhospitable to implanting embryos, just in case.

Are you with me so far? People who subscribe to the most conservative view don't like IUDs or morning-after pills, and they're suspicious of regular birth-control pills. These people are often conservative Christians, and they believe sincerely that using anti-implantation birth control is a sin, because it amounts to killing a human being. And that belief is their indisputable right.

The Affordable Care Act, or "Obamacare"

This is the last backgroundy thing you need to know before we get into the specifics of Hobby Lobby - I swear. (See? It's pretty complicated and we haven't even gotten to the case yet!)

I'll make this as simple as I can. Under the recent Affordable Care Act legislation, which is often called "Obamacare," businesses that employ a certain minimum number of employees have to provide their employees with health insurance. According to rules made by the Department of Health and Human Services, which flesh out the provisions of the Act, that health insurance must include preventive care for women, including complete coverage for any type of birth control approved by the Food and Drug Administration. This includes both types of birth control: the anti-fertilization type and the anti-implantation type. Employers pay for this coverage for their female employees. (I say "female employees" because only females have eggs, uteruses, and pregnancies - and that's why this is a women's issue.)

An extremely important detail: nonprofit religious organizations, such as churches, synagogues, and similar groups, can opt out of any coverage with which they disagree on religious grounds. All they have to do is file a one-page form with the HHS certifying their good-faith refusal, and the HHS will pay directly for the objectionable coverage. This procedure avoids stomping on the rights of a nonprofit religious organization and insures that women get the coverage of their choice without any cost to them individually.

The Hobby Lobby Dispute

Okay. I think you have enough background now to understand what happened last week.

Enter Hobby Lobby, which operates a bunch of huge craft supply stores all over the United States. Hobby Lobby is a closely-held corporation. That doesn't mean it's small - in fact, as of 2013, it had 3.3 billion dollars in annual revenue and was on the Forbes list of America's largest private companies. Saying that it's a closely-held corporation means it only has a few stockholders. In this case, the stockholders are all members of the incredibly wealthy Green family, who are conservative Christians of the as-soon-as-egg-meets-sperm-you're-pregnant camp.

And the Green family does not want to pay for its women employees to have access to any sort of birth control that operates after fertilization. But they are a for-profit corporation, so they can't take advantage of the religious exemption written into the law.

So they sued the Secretary of Health and Human Services, saying that her rules, which require that coverage, violate the RFRA.

And they won, by a squeaking 5-4 vote. (Here's a link to the official opinions in the case.)

The Justices who voted in favor of Hobby Lobby were Alito, Scalia, Kennedy, Thomas, and Roberts - all men. The Justices who dissented - that is, who voted against Hobby Lobby - were Ginsburg, Sotomayor, Kagan, and Breyer - three women and one man. Alito wrote the majority opinion. Kennedy wrote a brief "concurring" opinion - agreeing with the majority but stressing a different point. Ginsburg wrote the main dissent, and Kagan and Breyer wrote a separate dissent of their own.

And here's what they said.

The majority opinion said that, because of the closely-held nature of the Hobby Lobby corporation, the interests of the corporation and the Green family are one and the same. In other words, the corporation is entitled to a First Amendment right to the free exercise of religion. Forcing it to pay for contraceptive coverage to which it has a sincerely-held religious objection constitutes a substantial burden on its rights.

The majority further said that forcing the company to pay for such coverage was not the least restrictive way for the government to deal with the issue. The government could, for example, extend to Hobby Lobby the same mechanism for dealing with religious objections that it already extended to churches: that one-page form which, when filled out, compels the government to pay for the coverage directly. That would save Hobby Lobby from having to do something against its religion, and it would provide female employees with the coverage of their choice.

Justice Kennedy's separate opinion stressed that the decision was extremely narrow. He did not wish the Court's holding to suggest that a religious exemption was available to any employer - just to closely-held corporations whose owners had sincere religious objections.

Justice Ginsburg was unusually fiery in her dissent. She disagreed that the Greens and the corporation were one and the same. A corporation is a form of doing business that shields its owners from individual liability - if you get the benefits of being treated as a corporation, why should you double-dip by getting treated as an individual when it's convenient? A company should not have the right to bring a suit under the RFRA.

She also disagreed that Hobby Lobby was substantially burdened by the HHS rules. She reasoned that financing a sin is not the same thing as committing the sin oneself. We all pay taxes, but we don't decide individually how the money is spent. That's up to the legislature. Taken to an extreme, the two majority ideas put together - corporations having religious rights and no one being compelled to pay for things they disagree with - could set the country up for chaos in enforcing the health care law. Every individual entity would seek an exemption for every individual part of the law with which it disagreed. In the end, the law would be eviscerated, and women would be left effectively with no reliable access to the contraception they need for full, equal participation in society.

Justices Breyer and Kagan, in their separate dissent, agreed with Justice Ginsburg that Hobby Lobby's challenge to the contraceptive coverage requirement failed on its merits, so they stressed that they did not need to decide whether a for-profit corporation or its owner had standing to bring a claim under the RFRA.

So there you have it. And it would be settled, and fixable by a small amendment to the Affordable Care Act, if not for what happened on Thursday, July 3. On that day, the Supreme Court issued an injunction in the case of Wheaton College v. Burwell. In that case, Wheaton College, a small, non-profit religious liberal-arts institution in Illinois which is opposed to the use of birth control of all sorts, refuses to file the one-page form which would entitle it to an exemption. It argues that the filing of the form, in itself, makes it complicit in a sin.

And on Thursday, voting 6-3, the Supreme Court issued a preliminary injunction, basically saying that Wheaton does not have to file the form until the lower court decides the merits of its case.

All the men voted in the majority. All the women dissented.

Now you understand the issues and can discuss them intelligently. Go.


Esperanza said...

Thank you for this very thorough explanation. What I don't understand is how the fact that Hobby Lobby's coverage before the Affordable Health Care Act covered those anti-fertilization contraceptives AND the fact that they their retirement portfolio includes investments in the companies that produce those same contraceptives didn't affect the court's ruling. Those seem like really important points, why did they not make a difference? Can they really say that they just didn't know they were covering Plan B and ella before and it makes it okay for them to do this? That seems so insane to me. I'm just so confused about how this happened?

(Sorry to ask more questions, I just don't know where else to turn for answers. ;)

Jennifer Arlin said...

Esperanza, forgive me for taking so long to respond to your question. It is true that Hobby Lobby's 401(k) plan includes investments in large drug companies, including those that manufacture the drugs and devices to which H.L. objects. Most 401(k) portfolios are not managed by the employer themselves, but rather by independent investment managers they hire to do the job for them. (That was the case for my 401(k) plan for most of my working life - they probably invested in things I don't like, but I wouldn't have known because I didn't scrutinize the documentation that carefully). So my best guess on this is that they were unaware of their seemingly hypocritical portfolio until it hit the news cycle, and I'll bet they change it pretty fast.

As to providing the objectionable coverage before the ACA was enacted, I really don't know for sure, but my guess would be something similar: most large companies don't self-insure. They contract the job out to some big insurance company that issues a standard policy, and most standard policies cover FDA-approved birth control at least to some extent. They probably weren't paying attention to the details until the ACA was passed.

The ACA caused a lot of negative reaction when it was passed. It has endured several challenges over its short life. The religious objection to it is just the latest chapter in the effort to change or eliminate it. You can expect to see more cases like this - if you are interested, keep an eye on the Wheaton College case I mentioned at the bottom of this post. Chances are that's going to be the next big deal.

And thank you, sincerely, for reading and commenting. I often feel like there's no one out there, and I know you've been reading for a while, and I want you to know how much I appreciate it. Jennie