Introduction
On June 30, 2014, the U.S. Supreme Court decided Burwell, et al. v. Hobby Lobby Stores, Inc., Conestoga Wood Specialties Corp., et al., commonly referred to as “Hobby Lobby.” In short, the Court ruled that the U.S. Department of Health & Human Services’ 2011 regulations mandating insurance coverage of abortifacient contraception, promulgated under the 2010 Patient Protection & Affordable Care Act (“Obamacare”), violated closely-held corporations’ Religious Freedom Restoration Act of 1993 (“RFRA”) statutory rights.
Although Obamacare’s statutory language required most companies with 50 or more employees to provide health insurance which covered “women’s preventive care and screenings,” the statutory language did not specify contraceptives, let alone abortifacients. HHS, specifically the Health Resources & Services Administration, self-determined that the law mandated all FDA-approved contraceptive methods and sterilization procedures. The HHS regulations mandated that the affected companies provide insurance coverage for 20 different contraceptive methods or face severe financial penalties. Four of those contraceptive methods, Plan B, Ella, and 2 types of Intra-Uterine Devices (IUDs) are abortifacient and violated the strong and sincere religious beliefs of Hobby Lobby’s and Conestoga Wood’s owners. The owners clearly stated that it was their strong and sincere belief to provide good health-care coverage to their employees, and already covered the remaining 16 non-abortifacient contraceptive methods. Justice Samuel Alito wrote the majority opinion, Justice Anthony Kennedy wrote a concurring opinion, and Justice Ruth Bader Ginsburg wrote the primary dissenting opinion.
Sadly, almost immediately after Justice Ginsburg read her dissent from the bench, certain special interest groups, politicians, and so-called “legal analysts” (who in reality did not understand the law) began spreading mis- and dis-information about the decision and its ramifications. For example, they incorrectly claimed that the decision was part of the Republican party’s and “religious fanatics’ ” “War on Women,” and that the case enabled employers to “take away women’s birth control” and “control women’s health and women’s rights.” The New York Times even incorrectly editorialized that Hobby Lobby permitted “owners of closely held, for-profit companies an unprecedented right to impose their religious views on employees.” Democrat politicians such as Senator Patty Murray (D-WA) claimed that the government needed to fill the “contraceptive coverage gap” for women, and Senate majority leader Harry Reid (D-NV) said that “women’s lives are not determined by virtue of five white men … this Hobby Lobby decision is outrageous and we are going to do something about it.” Senator Reid apparently did not realize that Justice Clarence Thomas, who voted with the majority and has been on the bench for more than 20 years, is African-American, not white.
The truth is that Hobby Lobby does not permit corporations nor corporate owners to impose their religious views on anyone, does not deny nor prevent any woman from accessing or obtaining contraception or insurance coverage for contraception, and does not create a “contraceptive coverage gap.” Hobby Lobby was not a First Amendment nor a constitutional case; it was a statutory interpretation case. The precise question the Court considered was not about birth control or women’s rights; it was whether, under RFRA, the government had a less-restrictive means of accomplishing its goal of providing insurance coverage for women’s contraception rather than forcing all affected companies to provide insurance policies that directly covered the four abortifacient contraceptive drugs and devices which contravened strong and sincerely-held religious beliefs.
Company Backgrounds
David and Barbara Green and their three children own and run Hobby Lobby, based in Oklahoma City, Oklahoma, and an affiliated business, Mardel, which is a Christian bookstore. Norman and Elizabeth Hahn and their three sons own and operate Conestoga Wood Specialties, based in Lancaster County, Pennsylvania, which manufactures wood doors and components for kitchens, bathrooms, and furniture. All three companies are closely-held, family-owned, family-run, non-public corporations. Hobby Lobby self-insured its health-care coverage. No one ever doubted the strength and sincerity of the Hahns and the Greens religious beliefs. For example, the Greens testified, without challenge, that their religious beliefs include treating their employees well, which they practice by offering good health-care coverage, start employees at nearly twice the federal minimum-wage, reduce operating hours to promote family time, and other benefits. The uncontested record showed that Hobby Lobby closes on Sundays and plays Christian music in its retail stores. Hobby Lobby provides employees with free access to chaplains, spiritual counseling, and religiously-themed financial advice. The company refuses to sell shot glasses, refuses to allow its trucks to be used to haul alcohol (thus voluntarily turning down easy profit), and declined $3.3 million to lease one of its empty buildings to a liquor store.
RFRA Legislative Background And Standard
In 1993, President Bill Clinton, a liberal Democrat, along with a Democrat House of Representatives and a Democrat Senate, signed RFRA into law. Then-Congressman Chuck Schumer (D-NY), now a powerful liberal senator, sponsored RFRA in the House on March 11, 1993, which passed it via unanimous voice vote. The late Senator Ted Kennedy (D-MA), one of the most liberal senators at the time, introduced the bill in the Senate, which passed it with a 97-3 vote. Then-Senator Joe Biden (D-DE), now Vice President, and then-Senator John Kerry (D-MA), now U.S. Secretary of State, voted in favor of RFRA, as did Senator Reid. The ACLU also strongly supported RFRA’s passage.
President Clinton and the Democrat Congress passed RFRA in response to Employment Division v. Smith, 494 U.S. 872 (1990), which held that generally applicable laws unrelated to religion could still restrict Americans’ religious rights. In fact, both liberal and conservative politicians claimed that Employment Division made it *too* easy for the government to burden the free exercise of religion. Thus, when President Clinton signed RFRA into law, he said, “What this law basically says is that the government should be held to a very high level of proof before it interferes with someone’s free exercise of religion,” and that “[o]ur laws and institutions should not impede or hinder, but rather should protect and preserve fundamental religious liberties.”
RFRA prohibits the federal government from imposing “substantial burdens” on a person’s, including corporate persons, free exercise of religion unless the federal government uses the “least restrictive” means of serving a “compelling government interest.” RFRA provides an exception when (1) the “substantial burden” is necessary for the “furtherance of a compelling government interest” and (2) that the “substantial burden” is the “least restrictive” way or method to further the specific government interest.
It is unclear as to whether HHS considered RFRA when it issued its 2011 regulations at issue in Hobby Lobby. What is clear is that whenever an administrative regulation (e.g., the HHS mandate) conflicts with an already-existing law (e.g., RFRA), the law trumps.
Short Case Analysis
The Supreme Court recognized that Hobby Lobby alone faced penalties of approximately $1.3 million per day, or almost $475 million per year, if it did not fully comply with the HHS contraceptive mandate. The Obama Administration conceded that Hobby Lobby faced a “substantial burden” under RFRA: the owners had to choose between violating their religious beliefs or paying $475 million per year, which would have effectively killed the company.
The Court, for purposes of the case, simply assumed that requiring contraceptive insurance coverage was a “compelling government interest.” It also noted, however, that “the least-restrictive-means standard is exceptionally demanding.” The Court found that HHS’s heavy-handed mandate was not the least-restrictive means; rather, the Obama Administration had several options to achieve its contraceptive insurance coverage goal while simultaneously exempting conscientious religious objectors under RFRA.
For example, the Obama Administration could have paid for the contraceptives or contraceptive coverage directly. Or, it could have extended to Hobby Lobby the same accommodation it offered to religious non-profits, which essentially requires insurers, and not the company or religious non-profit, to cover the costs. It could have even subsidized the insurers for the costs. The Obama Administration essentially reduced its “compelling government interest” to merely a question of who pays for government-mandated contraception. Government-mandated funding is rarely, if ever, the least-restrictive method, if only because the government can always choose to fund or subsidize its own mandates.
What Does It Mean, And What Happens Now?
Hobby Lobby clarified RFRA’s protections, and the Court clearly stated that its ruling was “very specific.” It does not give all corporations carte blanche in avoiding all “compelling government interests.” For example, it is unclear if publicly-traded corporations with diverse shareholder religious beliefs would qualify for RFRA protection.
In this midterm election season, the Obama Administration and its congressional allies are already moving swiftly. HHS already issued draft regulations for both for-profit and non-profit entities, “Coverage of Certain Preventive Services Under the Affordable Care Act,” available at http://tinyurl.com/mrzkv2z, and http://tinyurl.com/ozwep9g, and Senator Murray introduced S.2578, the “Protect Women’s Health From Corporate Interference Act of 2014,” which would modify RFRA and also overrule Hobby Lobby. Congress has always had the power to exclude any legislation from RFRA protection. For example, Congress could have stated in Obamacare’s statutory language that it and its regulations were not subject to RFRA protection. Thus, Congress still retains the final word on when it wishes to permit or exclude religious exemptions, within constitutional boundaries.
John Shu is an attorney and U.S. Supreme Court expert and author of the Law & Public Policy Column. Mr. Shu served both President George H.W. Bush and President George W. Bush, and clerked for Judge Paul H. Roney, U.S. Court of Appeals for the Eleventh Circuit.