Fox News is minimizing the radical nature of the Supreme Court's decision in Hobby Lobby, framing it as narrowly-tailored and claiming that the federal government "will end up paying" for the four contraceptives that the chain store objected to. However, Fox is ignoring the fact that companies are challenging all 20 contraceptives covered under the Affordable Care Act (ACA) and that one way the conservative majority suggested the government could bridge the gap in coverage -- providing the same opt-out accommodation to for-profits that it provides to religiously-affiliated non-profits -- is already being challenged in the lower courts.
On June 30, the Supreme Court ruled in Burwell v. Hobby Lobby, holding that for-profit, secular corporations are exempt from a provision in the ACA that requires employer-sponsored health insurance plans to cover comprehensive preventive health services, including contraception. The religious owners of Hobby Lobby objected to providing coverage for certain forms of birth control, including emergency contraception and intrauterine devices, because they erroneously believe that these medications cause abortions. For the all-male conservative majority on the Court, it was enough that the owners "sincerely believed" this scientifically inaccurate information.
Right-wing media immediately celebrated the Hobby Lobby decision, which adopted many of their favorite myths about religious freedom and contraception. Fox News in particular was supportive of the Court's supposedly "narrow ruling," with contributor Laura Ingraham claiming that women who worked at companies "like Hobby Lobby" who were upset about the decision were overreacting and "had really bad cases of the vapors over this case." A panel discussion on the June 30 edition of Fox's On the Record with Greta Van Susteren also downplayed the significance of the case, with Weekly Standard senior writer Stephen Hayes stating that he didn't think the case would "have a huge impact" because "the Court very carefully narrowed this case to apply basically to the facts presented." A.B. Stoddard, associate editor of The Hill, agreed with Hayes and claimed that the case was "narrowly-tailored," arguing that "the government will end up paying for these [forms of contraception] anyway." Fox News host Megyn Kelly went the furthest on The O'Reilly Factor, claiming reproductive rights advocate Sandra Fluke -- who warned the decision could apply to all contraception -- "doesn't know what she is talking about."
SANDRA FLUKE [video clip]: What this is really about, at its base, is trying to figure out as many ways as possible to limit women's access to reproductive health care.
O'REILLY: Oh, that's right.
KELLY: Oh my gosh.
O'REILLY: They want to limit -- go down to Target and buy it for nine bucks a month.
KELLY: It hurts. It hurts. It doesn't matter how many times you say something -- it doesn't matter whether it's true if she just says it over and over again people are going to believe it. That's not true. Just don't believe that. She doesn't know what she is talking about. What a shocker.
O'REILLY: She doesn't care. She doesn't care to know.
KELLY: They limited it in small corporations. These corporations that are basically 50% of the stock is owned by five people or less. Those corporations alone. And granted, it's about 50% of U.S. corporations -- 90% of U.S. corporations that employs about 50% of the American population. So it's a lot of corporations that could be affected, but only those that feel strongly about their religious beliefs. Those folks aren't going to have to provide abortion-related drugs.
O'REILLY: And they'll probably get audited by the IRS when they put in their little waiver.
KELLY: It's drugs that terminate an already fertilized egg. That's the only -- out of 20 birth control drugs that are available, they still have to cover 16. They just said we don't want to fund those forms of birth control that end a fertilized egg. ... That's it.
The idea that the ruling in Hobby Lobby is somehow contained to the facts presented -- and the four contraceptives Hobby Lobby originally challenged -- is misleading. As the Associated Press reported the day after the decision, a flurry of subsequent Supreme Court orders "confirmed that its decision a day earlier extending religious rights to closely held corporations applies broadly to the contraceptive coverage requirement in the new health care law, not just the handful of methods the justices considered in their ruling." These orders, sending cases involving companies challenging all 20 contraceptive methods -- not just the Hobby Lobby ones -- back down for reconsideration, "sent a fairly strong signal on Tuesday that its ruling giving some for-profit businesses a right not to provide birth control services to their female workers goes beyond the specific methods at issue in that decision," in the words of legal expert Lyle Denniston.
Further, although the conservative majority claimed its holding applied only to "closely held" corporations, it failed to note that over 90 percent of corporations are defined as closely held, and not all closely held corporation are mom-and-pop shops -- including Hobby Lobby, which employs thousands of people and operates over 600 stores. As Justice Ruth Bader Ginsburg pointed out in her dissent, "as Hobby Lobby's case demonstrates, such claims are indeed pursued by large corporations, employing thousands of persons of different faiths, whose ownership is not diffuse. 'Closely held' is not synonymous with 'small.'" Ginsburg went on to note that "Hobby Lobby is hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons." Other corporate law experts seconded Ginsburg's warning that the majority's newfound corporate religion could be used by all companies, closely held or no.
Moreover, it's unclear how "the government will end up paying" for disputed medications, given that Republicans shut the government down at least in part to protest the birth control requirement in the ACA. In addition, legal challenges to the very religious accommodation exemption the conservative justices proposed are picking up steam in the wake of Hobby Lobby.
In its majority opinion, the Court suggested that the federal government find a "less restrictive" way to provide coverage for the disputed contraceptives in Hobby Lobby, such as providing corporations access to the exemption it already provides to religiously-affiliated non-profits. To obtain the exemption, all an eligible organization has to do is sign a self-certification form that states its religious objection to contraception, which then allows the organization's insurance company, not the religious objectors, to make arrangements to cover the cost of preventive health care services. But the majority opinion didn't dwell long on the fact that the constitutionality of this religious accommodation is also being challenged by a number of Catholic charities who claim that explicitly stating their religious objection to contraception -- in this case, that means signing the piece of paper -- is also a violation of their First Amendment rights. Fox seemed all too happy to ignore this, even though challenges to the religious accommodation could seriously stymie the government's efforts to follow the conservative justices' suggestion and help pay for contraception methods religious employers refuse to cover.
In fact, one lower court already interpreted the Hobby Lobby decision to mean that that the religious accommodation exemption is likely illegal as well.
On June 30, after the decision in Hobby Lobby came down, the 11th Circuit Court of Appeals issued a ruling in Eternal Word Television Network v. Alabama, a case involving a Catholic television network that had requested an injunction to avoid paying fines associated with the contraception requirement in the ACA. The television network is a religiously-affiliated non-profit who is otherwise eligible for the pre-existing religious accommodation exemption, but believes that signing the certification form "substantially burdens" their religious beliefs. The 11th Circuit ultimately granted Eternal Word's request for an injunction "in light of the Supreme Court's decision" in Hobby Lobby.
In a concurrence to the injunction, Circuit Judge William H. Pryor wrote:
I concur that we should grant the injunction pending appeal sought by the Eternal Word Television Network, Inc. I write separately to explain why the Network is substantially likely to succeed on the merits of its appeal that the contraception mandate of the [ACA] violated the Religious Freedom Act. The Network has asserted, without dispute, that it "is prohibited by its religion from signing, submitting, or facilitating the transfer of the government-required certification" necessary to opt out of the mandate. The Network further asserts that, by requiring it to deliver [the form] to the third-party administrator of its health insurance plan, the United States has force the Network "to forego religious precepts" and instead, contrary to Catholic teachings, materially cooperate in evil.
Judge Pryor went on to cite the opinion in Hobby Lobby to support the proposition that "it is neither our duty nor the duty of the United States to tell the Network that its undisputed belief is flawed," and concluded that as long as the owners of Eternal World honestly believe that signing a form constitutes cooperating "in evil," they should be let off the hook. In other words, lower courts are already viewing Hobby Lobby as a case with potential to shut down yet another avenue for women to obtain affordable preventive care.
But Fox News doesn't seem bothered by this latest attack on women and reproductive choice, which puts the lie to their claim that the Hobby Lobby decision was a "limited" outlier of little impact.