If you were judging only from the outraged reaction online, you could be forgiven for thinking that the Supreme Court’s ruling in Burwell v. Hobby Lobby had just mandated the adoption of Margaret Atwood’s The Handmaid’s Tale as the blueprint for American society. Yet as my colleague Ilya Shapiro notes, there’s a profound disconnect between all the rhetoric about “denial of access” to contraception and the substance of the ruling.
At the heart of the majority’s opinion is this: The Department of Health and Human Services has already developed a way to exempt religious non-profit corporations—such as churches, charities, and hospitals—from the legal mandate to pay for employees’ contraception coverage. In what amounts to an accounting trick, they permit those corporations to purchase plans without such coverage, and then require that insurance companies themselves independently provide it to the uncovered employees. Because pregnancy is quite a bit more expensive than contraception, this apparently ends up not imposing any additional net cost on the insurers. The result is that employees of religious non-profits end up with no-copay contraception coverage, exactly as if the employer were required to provide it directly, but the employers are satisfied by this ledger shuffling that they aren’t being compelled to violate their most deeply held moral convictions. Which, one would think, is a win-win.
Against this background, the Court simply held that since HHS has already found a way to achieve the government’s aim of ensuring employees have access to free contraception without compelling non-profit employers to act against their profound religious convictions, they must do the same in the case of for-profit employers, at least where the for-profit corporation is “closely held.” The majority quite explicitly denied this ruling has any implications for cases where there might not be such a happy win-win means of achieving the government’s ends, at no additional cost, without forcing employers to violate their convictions. As Justice Alito’s opinion emphasizes: