From Arthur's Policy Desk: The Hobby Lobby Morning After Pill

Dr. Arthur Garrison

Much has been said and written on the Court’s ruling in Burwell v. Hobby Lobby. The full impact of Hobby Lobby is in what the Court ordered in six other cases the morning after the decision.

In Hobby Lobby, the Court ruled in regard to the Religious Freedom Restoration Act of 1993 (RFRA) and regulations of the Department of Health and Human Services (HHS) that,

“closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners. We hold that the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.”

As to those religious beliefs, the Court held “whether the religious belief asserted in a RFRA case is reasonable [is a] question the federal courts have no business addressing.” But, to “qualify for RFRA’s protection, an asserted belief must be “sincere”; a corporation’s pretextual assertion of a religious belief in order to obtain an exemption for financial reasons would fail.”

The Court also held that under RFRA:

“[s]ince the HHS contraceptive mandate imposes a substantial burden on the exercise of religion, we must move on and decide whether HHS has shown that the mandate both ‘(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’” The substantial burden was the cost of fines for failure to comply with the regulations.

The Court answered the first test in the affirmative (“We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA”) and the second in the negative (“The least-restrictive-means standard is exceptionally demanding. [Requiring the lack of] other means of achieving its desired goal without imposing a substantial burden on the exercise of religion”). The government lost on the second test on the basis that DHH (1) had already granted waivers of the regulations to other religious based organizations and (2) had made provisions for employees of such organizations to gain contraceptives from the insurance companies directly. Thus DHH had other ways to achieve its interests.

On the morning after, the Court issued orders on six cases on its docket. Autocam is a company identical to Hobby Lobby in religious view and corporate structure and does not offer contraceptives of any type to its employees directly through its insurance. In Autocam Corp v Burwell, the Court reversed and remanded a holding by the Sixth Circuit which held that Autocam was not protected under RFRA. The Court similarly acted in Gilardi v. Department of Health & Human Services and in Eden Foods v. Burwell. In three cases, Department of Health & Human Services v. Gilardi, Burwell v. Newland and Burwell v. Korte, in which RFRA assertions made by Hobby Lobby type corporations were upheld, the Court did not grant the DHH appeals. Together these cases make clear that Hobby Lobby applies (“our decision . . . is concerned solely with the contraceptive mandate”) to for-profit closely held corporations that refuse to offer all types of contraceptives because of “sincere religious” objections.

As I teach my students in my law classes, when reading a Supreme Court case, focus on the law and context not the political spin of the case. The Court only held that (1) for-profit corporations, (2) which are closely held, (3) that have sincerely held religious beliefs are protected by RFRA. Under the law, if a court finds that such a corporation has such sincere beliefs, they will only prevail against the compelling governmental interest if there is no least restrictive means to accomplish them. The Court made clear the decision had limits.

“Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them. [And as to racial discrimination based on] religious practice . . . [o]ur decision today provides no such shield.”

But what the Court left open is whether the decision applies to publicly trading companies, although the logic of the decision (“These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims”) leaves doubt that it would. As a practical matter, the court added for-profit closely held corporations to the list of religious non-profit organizations that already had DHH waivers.

Dr. Arthur Garrison is an assistant professor of criminal justice at Kutztown University. This piece is the work of Dr. Garrison and does not reflect the opinions of Kutztown University or its faculty, staff, students or alumni.