July 7 2014
The National Law Journal
The U.S. Supreme Court's decision in Burwell v. Hobby Lobby is a victory — however qualified — for conscience rights, especially for individuals who choose to organize themselves as profit-seeking corporations. Contrary to much political rhetoric, the ruling leaves women's rights perfectly intact, and the real-world effect on the availability and financing of various contraceptives will be minimal.
In Hobby Lobby, importantly, the court focused solely on a federal statute, and decided that the mandate violated the 1993 Religious Freedom Restoration Act (RFRA). Future cases may deal with the still-open issue of corporate personhood with regard to the First Amendment, but because the court in Hobby Lobby dealt with the application of the RFRA, the First Amendment question was not addressed.
The government did itself no favors focusing on the potential for "divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric." The court easily sidestepped this concern by narrowing its decision to closely held corporations whose religious identities are easy to ascertain. In the majority opinion, Justice Samuel Alito wrote, reasonably, that publicly traded corporations would be unlikely to bring a RFRA claim for practical reasons.
Furthermore, the government clearly recognized that groups of people can exercise religious beliefs when the government extends accommodations to not-for-profit corporations. The court could not, and did not, find any reason that a for-profit company would be categorized or treated differently under the RFRA.
The court ruled that the government failed to demonstrate that the mandate was the least restrictive means of achieving its public health goal, and the issue of "accommodation" was central to the ruling: Among other means, the Department of Health and Human Services could simply extend this accommodation to employers like Hobby Lobby so that female employees could still obtain no-copay coverage through a third-party (insurance company).
Contrary to the fear-mongering of women's rights groups on the political left, the ruling means women's access to birth control can remain completely unchanged. The overwhelming majority of women do not seek or obtain contraceptive coverage from employers with religious objections. Eighty-five percent of large employers offered contraceptive coverage before the Affordable Care Act, according to the Kaiser Family Foundation, and presumably this figure has increased because of the mandate.
Very few will choose the path Hobby Lobby has taken, and even then the government can easily extend accommodations or special programs to affected workers. This ruling is a win for religious liberty, with no significant losses for those on the other side of the debate.
Hadley Heath is director of health policy at Independent Women’s Forum, a conservative nonprofit focused on women’s issues.