In breaking but not unexpected news, Hobby Lobby and two other closely held corporations prevailed over the Department of Health and Human Services in the Supreme Court today over whether they could be forced, under the Affordable Care Act, to pay for the provision of certain types of contraceptives for their female employees. The court, in a 5-4 decision, ruled for the corporations. The decision was penned by Justice Alito and joined by the three other conservatives on the Court – Scalia, Thomas and Roberts. Justice Kennedy concurred with the majority opinion, but he seemed to be trying to confine the majority’s decision to narrow grounds.
The court ruled that:
(1) Closely held corporations hold and exercise the religious freedoms of their owners (despite the multitude protections for said owners that separate them from the corporation, said protections being the reason for the corporate form).
(2) If the government wants female employees of for-profit corporations to have free choice with respect to contraception, it should just force insurance companies to pay for it.
(3)The exercise of Hobby Lobby’s (and any other closely held corporation’s) religious beliefs does not, in the Supreme Court’s opinion, “significantly impinge” on the interests of women employees, whose contraceptive choices are now at the mercy of their employers.
The dissent, written by Justice Ginsberg, joined by the liberal wing of the court – Kagan, Sotomayor, and Breyer, lambasted the majority opinion for its “extraordinary” application of the Religious Restoration Freedom Act (“RFRA”) of 1993 – a law that protects the religious liberty of “persons.” The majority ruled that “persons” includes corporations, but that in all likelihood, because of the disparity of views in a larger corporate structure with perhaps thousands of shareholders, it was most likely that only a closely held corporation could effectively and legitimately exercise the religious beliefs of its owners.
The majority determined that the religious freedom exercised by closely held, for-profit corporations would not “significantly” impinge on the rights or interests of the women employees affected by this decision. This decision glosses over the fact that for thousands, if not tens of thousands of women, certain reproductive choices will now be made by their bosses, rather than by their doctors or themselves. Hobby Lobby and its co-plaintiffs only objected to four of the twenty contraceptive methods required under the ACA, however there remains considerable debate as to the scientific basis of the assertions the parties made with respect to how the contraceptives work and therefore why they have a legitimate religious objection.
This case is of little surprise to watchers of the Court – Justice Alito was tasked with writing the opinion, and he is firmly in the court’s conservative wing. Citizens United, decided in January 2010, ruled that corporations have free speech rights – another guarantee of the First Amendment that was recently applied to the corporate form. Although not connected by constitutional rationale, just days ago, the Court unanimously struck down Massachusetts’ abortion clinic “buffer zone” law that required protestors to stand 35 feet from the entrance to clinics offering abortion services.
With respect to the so-called “war on women,” this is a significant victory for the pro-life movement that needs to be seen against a wave of smaller victories across the country for that movement over the last several years. Pro-life advocacy groups have been working hard at the state level to craft and pass so-called “TRAP” laws, which are laws that put obstructions in the way of women seeking an abortion. These “obstructions” have included mandatory waiting periods, mandatory ultrasounds, and more recently, requiring abortion clinics to meet certain health and safety standards, and requiring the doctors who work in them to have admitting privileges at local hospitals. The net effect of these laws has been staggering. According to a study by the Huffington Post, in the last four years, at least 54 abortion providers across 27 states shut down or ended abortion services. Just two days ago, reports out of Northern Alabama indicated that the last clinic in that region would close because of its inability to meet the requirements of a new law, including the width of its corridors
The irony of today’s decision, and the TRAP laws that preceded (and will undoubtedly follow) it is that the court cases and legislative proposals are generated by conservatives, who hold dear the notion of individual liberty and small government. Today, the majority’s “less restrictive alternative” in the Hobby Lobby case was to force government to force insurers to pay for the contraception that Hobby Lobby and its ilk won’t pay for – hardly an act to minimize government intervention, and one that most certainly reduces the individual liberties of the thousands of female employees of those corporations.