BY MICHAEL RICONDA
The decision in Burwell v. Hobby Lobby promises to be one of the most controversial rulings of 2014. It is almost natural to ask where the law will develop from this contentious flashpoint and how far the court is willing to go to protect religious freedom.
First, an understanding of the ruling itself is necessary. Hobby Lobby, an Oklahoma-based arts and crafts outlet, argued that Obamacare’s contraception coverage mandate compelled them to cover three separate forms of birth control. While they seem to have had no objection to most forms which merely prevent fertilization, they argued Obamacare’s financial penalties on insurers would have effectively penalized them for denying coverage to those three forms which they consider abortion.
By contrast, it was widely and falsely reported across the mainstream media that Hobby Lobby refused to offer any form of contraception. In reality, the vast majority of contraception is covered by the company’s health care policy.
Hobby Lobby ultimately prevailed. The Court’s majority opinion, authored by Supreme Court Justice Samuel Alito, argues that in order to be enforceable in the face of a religious objection, a policy must be the least restrictive means of serving a government interest, a standard outlined in the 1993 Religious Freedom Restoration Act (RFRA). The court argued the mandate does not meet that standard because less restrictive options were available.
“There are other ways Congress or HHS could equally insure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all FDA-approved contraceptives,” The majority opinion read.
However, the religious objection alone does not mean employees are sure to lose coverage. Though the court did not prescribe another standard, it did point out the existence of at least one less-restrictive alternative which might satisfy the government’s interest while also protecting religious liberties: Shifting insurance costs on contraception from Hobby Lobby to the government.
“The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections,” Alito’s decision read. “This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown … that this is not a viable alternative.”
Such a shift of responsibility in insurance coverage is termed an “accommodation” and can be enacted by filling out a form and submitting it to an insurance company, who then provides separate coverage to an employee. Company leadership would be spared from violating their own conscience while employees would be allowed an alternative plan to make their own health decisions.
Though the majority opinion attempted to alleviate fears of a slippery slope, the ruling has raised alarms among advocates of reproductive freedom. In her dissent, Justice Ruth Bader Ginsburg referred to hypothetical objections to blood transfusions by Jehovah’s Witnesses, anti-depressants by Scientologists or certain pig gelatin-based medicines by Jews and Muslims as potential expansions of the ruling.
“Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another,’ the very ‘risk the [Constitution’s] Establishment Clause was designed to preclude,” Ginsburg argued.
Alito countered such claims in his majority opinion, arguing it would be “unlikely” to see a deluge of claims regarding medical procedures.
Though this was a relatively simple and hands-off ruling, the court seemed to have complicated their own standard only a few days later. A similar lawsuit brought by Wheaton College, an Evangelical Christian university in Illinois, asserted even the submission of an accommodation request was burdensome to the school’s religious freedom.
Only a few days after the court ruled in favor of Hobby Lobby, it allowed Wheaton to forgo the accommodation process during the proceedings of their case. Wheaton’s case is not settled, but they have free reign over the accommodation process-and deny it to anybody seeking contraception coverage-until it is.
No “least-restrictive alternative” has been set forward and the broader impact has yet to be seen, but the court appears ready to apply it in a very strict, narrow fashion. From here, we might see further cases which test the boundaries of the new rule and determine exactly where an employer’s freedom of religion ends and the interests of individuals or the state begin.
In particular, the case of Michigan-based Eden Foods will likely add specificity to the standards on which corporations may claim religious freedoms. The Eden Foods case is similar to that of Hobby Lobby in that the company wishes to be exempted from federal insurance mandates. However, this case-as well as about 100 other similar disputes across the country-have yet to be decided.
Another lingering question is the treatment of religious objections outside of a medical context. Alito specifically stated it was unlikely such claims would prevail, but this has not stopped critics from suggesting the ruling could be used to undermine federal anti-discrimination statutes.
Indeed, such cases might already be appearing on the horizon. In a letter addressed to President Obama, a coalition of religious leaders cited the Hobby Lobby ruling in a request for an exemption to a new federal policy prohibiting discrimination against LGBT individuals in government contract matters. The case has not yet reached the stage of litigation and its success is uncertain, but it shows the impact of the ruling could reach beyond insurance coverage.
In short, the Hobby Lobby ruling definitely expands the power of employers to decide upon insurance coverage, but it does not appear designed to allow employers absolute control over whether or not employees may receive contraception coverage. The court seems to be nudging lawmakers in the direction of a compromise to satisfy both sides, but the shape of that compromise might not become apparent for some time.