Tag: Hobby Lobby

The Republic of Gilead Is Not Nigh

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:

Of Course Government Can’t Violate Religious Liberty for No Good Reason

Hobby Lobby is a much simpler and less important case than it’s been made out to be, for reasons the Court clearly spelled out today. Obamacare’s contraceptive mandate had to fall under the Religious Freedom Restoration Act (without even getting to the First Amendment) because it didn’t show – couldn’t show – that there’s no other way of achieving its goal without violating religious beliefs. Moreover, the fact that a for-profit corporation is asserting the statute’s protections is of no moment because neither the corporate form nor the profit motive undermines RFRA’s solicitude for the rights of humans – including owners, officers, and shareholders. In short, the mandate fell because it was a rights-busting government compulsion that lacked sufficient justification. Nobody has been denied access to contraceptives and there’s now more freedom for all Americans to live their lives how they want, without checking their freedom at the office door. 

For more on how the “corporate rights” issue in the case was really a misnomer – because the free exercise of individual humans is at issue regardless of how you style the legalese – see Cato’s amicus brief