The Curious Case of Hobby Lobby

by Sean Philpott-Jones, Director of the Center for Bioethics and Clinical Leadership

The news was chock-a-block with important health stories this week, including new evidence debunking the vaccine-autism myth and the revelation that researchers conducted a legal albeit ethically questionable study that manipulated the emotions of nearly 700,000 Facebook users. But I want to talk about the 900-lb. gorilla in the room: the US Supreme Court’s decision in the so-called “Hobby Lobby” case (Burwell et al. v. Hobby Lobby Stores, Inc. et al.)

Hobby Lobby, a privately owned chain of 640 arts and crafts stores with more than 13,000 employees, appealed for an exemption to the contraceptive requirements of the Affordable Care Act. While Hobby Lobby includes most forms of contraception under its employee health insurance plan, they do not include those forms of contraception – intrauterine devices (IUDs) and morning-after pills – that they consider to be abortificants.

Whether or not those forms of birth control induce abortions (they largely don’t) is actually immaterial to this case. What matters is whether or not a private company like Hobby Lobby can forced to provide a form of contraception that runs contrary to the religious beliefs of the owners.

In a sharply divided 5-to-4 decision, the Supreme Court ruled that requiring family-owned corporations to pay for insurance coverage for contraception violated the Religious Freedom Restoration Act. Closely held corporations – businesses where more than 50 percent of the stock is owned by five individuals or less – will no longer be required to provide insurance coverage for contraception if doing so violates the owners’ religious beliefs.

The Hobby Lobby case revolved around two questions. First, can a for-profit corporation like Hobby Lobby be considered a ‘person’ under the Religious Freedom Restoration Act. That Act states that the government “shall not substantially burden a person’s exercise of religion”. As strange as it may sound, the answer to this question is an unequivocal ‘yes’. Corporations are presumptively treated as persons under the law, and the federal government has recognized that the Religious Freedom Restoration Act protects non-commercial corporations like churches.

Second, does the contraception mandate in the Affordable Care Act substantially burden Hobby Lobby? The Religious Freedom Restoration Act does not give carte blanche to all faith-based beliefs and activities. The parents of a severely ill child, for example, cannot refuse to allow lifesaving treatments even if those treatments violate their religious beliefs. But the law requires that there be a compelling state interest and the government use “the least restrictive means of furthering that compelling interest.”

A strong argument can be made that providing universal contraceptive coverage is in the best interests of the state. The social, economic, and medical benefits of preventing unintended pregnancy are significant. For example, every $1 invested in family planning services saves nearly $4 in pregnancy-related Medicaid expenditures. Hormonal contraceptives like birth control pills are also used to treat a variety of medical conditions, including migraines, premenstrual dysphoric disorder, and polycystic ovary syndrome.

This point wasn’t even in dispute. What the Supreme Court’s majority held, however, was that there were less burdensome alternatives to achieving universal contraceptive coverage. The federal government has already created exemptions to the contraceptive mandate for non-profit religious organizations, requiring insurance companies to offer contraception coverage directly to employees who want it rather than as part of an employer-provided plan. These exemptions could be extended to closely-held for-profit companies like Hobby Lobby.

This is where I find fault with the Supreme Court’s ruling. Writing for the majority, Justice Alito states that the federal government has “at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs.” But this too is being challenged in federal court under the Religious Freedom Restoration Act.

Over 100 religiously affiliated non-profits are suing over that accommodation, arguing that it amounts to complicity in sin. These employers are not providing or paying for contraceptives – the use of which violates their religious beliefs – but the very fact that they have to offer health insurance at all sets in motion the events that lead to contraceptive use. This, the plaintiffs claim, violates their rights. Should the various courts rule in their favor, the less burdensome alternative mentioned in Alito’s majority opinion could no longer exist.

Moreover, the question of complicity in sin is challenging one. It is more suited to philosophical or theological debates than courtroom testimony. For instance, should we apply this to the Hobby Lobby case, we could question the sincerity of that complaint by noting that their employee retirement plan invests heavily in companies that produce contraceptive pills and IUDs. They also sell large numbers of products that are made in China, a country whose one-child policy mandates the use of contraceptives or abortion as a means of controlling population growth.

In her scathing dissent, Justice Ruth Bader Ginsburg wrote, “the court, I fear, has ventured into a minefield.” No truer or more prophetic words have likely been written. Should current accommodations to the contraceptive mandate be struck down, for example, the majority opinion in Burwell v. Hobby Lobby will have no constitutional standing. The ruling is also likely to have far ranging consequences, as it calls into question decades of court decisions that have denied religious exemptions from laws that apply to all private businesses or individuals. The consequences of the Court’s expected but ill-considered decision are likely to be far-ranging and precedent-shattering.

[This blog entry was originally presented as an oral commentary on Northeast Public Radio on July 3, 2014, and is available on the WAMC website. The contents of this post are solely the responsibility of the author alone and do not represent the views of the Bioethics Program or Union Graduate College.]

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