Beyond Hobby Lobby









by Amanda Krupman, Digital Communications Manager, Colin Powell School

On Monday, the Supreme Court of the United States issued a highly contentious decision in the Burwell v. Hobby Lobby case, in which the Court ruled 5-4 that a for-profit company can invoke religious beliefs in order to deny paying for otherwise government-mandated contraception to their employees.

Three days later, the Court delivered another ruling on ACA-related contraception, this time an unsigned emergency order for injunction for Wheaton College, a Christian college in Illinois. This decision offered another exemption from the Affordable Care Act's provision of free birth control with all insurance plans. In this case, however, the ruling installs a further barrier to contraception for Wheaton College staff, faculty, and students—and according to a fiercely worded dissent by Justices Sotomayor, Kagan, and Ginsburg, contradicts elements of the Hobby Lobby ruling and "undermines confidence in this institution."

The contradiction of guidelines set forth in the Hobby Lobby case has the Court saying on Monday that for-profit companies citing religious objections to contraceptive methods could employ the workaround already in place for nonprofit religious organizations that, unlike churches, don't qualify for categorical religious exemption: sign a form that transfers the responsibility of paying for and delivering those methods to others (the insurance companies). On Thursday, this endorsement was undermined and confused by the temporary injunction provided to Wheaton College, which honored the college's claim that by signing the religious objection form, they would be complicit in their support of the so-called abortions (which by scientific definition are termination of fertilized and implanted eggs in a woman's uterus) caused by Intrauterine Devices (IUDs) and the morning-after pill (which work to prevent fertilization and implantation, and cannot terminate an already fertilized and implanted egg). In its decision, the Court said that Wheaton College need only to submit a letter to the government stating their religious, non-profit status, which would apparently absolve the institution from any direct facilitation of the objectionable birth control, and put the onus on the government to fill that gap.

So it's ok for for-profit companies to deny employees full health coverage mandated by law because they can call on the same exemptions as religious nonprofits and fill out a form that has the insurance companies pick up the tab. But now filling out that form is in itself problematic, and thereby optional?

The dissent on the order challenged Wheaton's complicity theory by calling on an analogy used by a lower court:

"Suppose it is wartime, there is a draft, and a Quaker is called up. Many Quakers are pacifists, and their pacifism is a tenet of their religion. Suppose the Quaker who's been called up tells the selective service system that he's a conscientious objector. The selective service officer to whom he makes this pitch accepts the sincerity of his refusal to bear arms and excuses him. But as the Quaker leaves the selective service office, he's told: 'you know this means we'll have to draft someone in place of you'—and the Quaker replies indignantly that if the government does that, it will be violating his religious beliefs. Because his religion teaches that no one should bear arms, drafting another person in his place would make him responsible for the military activities of his replacement, and by doing so would substantially burden his own sincere religious beliefs. Would this mean that by exempting him the government had forced him to 'trigger' the drafting of a replacement who was not a conscientious objector, and that the Religious Freedom Restoration Act would require a draft exemption for both the Quaker and his non-Quaker replacement?"

Justice Sotomayor, in her dissent, also called into question the Court's use of its power in this case to block established law:

"Even if one accepts Wheaton's view that the self-certification procedure violates RFRA [the Religious Freedom Restoration Act of 1993], that would not justify the Court's action today. The Court grants Wheaton a form of relief as rare as it is extreme: an interlocutory injunction…in a case in which the courts below have not yet adjudicated the merits of the applicant's claims and in which those courts have declined requests for similar injunctive relief. Injunctions of this nature are proper only where 'the legal rights at issue are indisputably clear.' Yet…no one could credibly claim that Wheaton's right to relief is indisputably clear."

The coverage of the Hobby Lobby case this week has most often framed the case as pitting women's rights against religious rights. That is one framework for understanding and concern, but within this framework the issues are nuanced and have further implications outside of women's health and wellbeing and religious liberty. One is the larger question of corporate personhood: is it logical to afford corporations the same rights as individuals, especially if affording those rights are to arguably infringe on individual rights? The Hobby Lobby ruling could (and most likely will) lead to other for-profit entities invoking conscience to deny same-sex spouses or domestic partnerships the same spousal and partner benefits otherwise extended to different-sex couples.

Indeed, there's seemingly no limit to how far the ruling could be interpreted in supporting any number of so-called religious objections. In the Hobby Lobby dissent, Ginsburg wrote: "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."

Furthermore, the lawsuit and resulting injunction by Wheaton College, along with the Mother Jones reportage revealing Hobby Lobby to be financially entangled with companies producing the same contraceptive technologies they oppose, are clearly another set of challenges to the Affordable Care Act dressed up as arguments for religious freedom. When abortion opponents realized they might better bring down the rights afforded through the Roe v. Wade decision by obstructive laws and onerous bureaucratic procedures, and saw success in this bit-by-bit dismantling, they've inspired a new generation of legal strategies that can take the same tack. We should all be concerned that with just the right maneuvering and manipulation, these legal challenges can defang even our fiercest protections of equality and liberty.