In a much-anticipated decision, the Supreme Court today issued opinions on Burwell v. Hobby Lobby. I say opinions, because by my count, there were four. (The majority opinion was 49 pages long, with a four-page concurring opinion from Justice Kennedy; a 35-page dissent; and a one-page concurring dissent.) The majority opinion, written by Justice Alito and joined by Scalia, Thomas, Roberts, and Kennedy in part, ruled in favor of Hobby Lobby. Alito's opinion states that for closely held, for-profit corporations that are owned by a single family, the Religious Freedom Restoration Act, (RFRA) does protect exercise of religion.
This means that Hobby Lobby and other closely held corporations like it cannot be compelled to provide contraceptive coverage for their employees (at least as the law currently stands). The court also bent over backwards (not an easy feat in those robes) to narrow the opinion as closely as they could, meaning that the religious freedom for corporations really only applies to contraception. However, the fact that the court ruled in favor of Hobby Lobby means that it is entirely possible that other corporations will bring challenges to the Affordable Care Act on religious grounds. (Though the court specifically states that this ruling cannot apply to vaccinations or blood transfusions.)
Here's a bit of a breakdown of what the decision does and does not do.
What the decision does:
- Applies RFRA to closely held, privately-owned corporations. Under RFRA, the government may impose a burden on religious exercise, but only if they pursue the "least restrictive way possible." The SCOTUS today ruled that the government did not pursue the lease restrictive way possible to pursue their compelling interest of providing contraceptive services for women.
- Allows said corporations to apply their religious exercise to insuring contraception. The decision very specifically says that this ruling does not allow corporations to deny blood transfusions or vaccinations. It also says that this decision should not be used as an excuse to discriminate against people on the basis of race or sex. It also cannot apply to income or social security taxes. So when it comes to women's reproductive health, we might see some more lawsuits coming out of the woodwork.
- Claims that the government can provide the services that the corporations refuse. Because the Obama administration already had a work-around in place for religious nonprofit organizations, the court stated that the government can grant Hobby Lobby an exception to the contraception mandate without assuming much burden. Therefore at this point, it is unlikely that women will have to go without contraception services.
What the decision does not do:
- Address publicly held corporations. The court's decision very specifically applies to closely held, privately-owned corporations–particularly those that are owned by a single family. We may see a suit from a publicly held corporation at some point, but it would likely be much more difficult to determine a corporation's religious beliefs if it is publicly held.
- Address nonprofit organizations. This decision does not explicitly comment on the pending cases from nonprofit organizations that claim that they are substantially burdened by having to certify their objection. (That is, the cases like Little Sisters for the Poor, who claim that certifying their objection is tantamount to signing a 'permission slip' for their employees to get contraception.)
- Strike down the entire HHS contraception mandate. Under the SCOTUS decision today, some companies may be able to apply for exemption from the contraception mandate. However, most employers who were required to provide insurance for contraception will likely still be required to provide insurance for contraception.
For now, this decision from the Supreme Court is quite narrow, and applies only to this particular company, and only for contraception. But Justice Ginsberg had serious reservations about the decision, which she made clear in her 35-page dissent.
Check out our coverage of this case: