The Supreme Court will soon decide Sebelius v. Hobby Lobby Stores, a case that could let owners of for-profit, secular corporations ignore the Affordable Care Act (ACA) and provide health insurance that does not cover preventive benefits like contraception. Right-wing media continue to advance multiple myths to support the owners of Hobby Lobby, despite the fact that these arguments have been repeatedly debunked by legal experts, religious scholars, and medical professionals.
MYTH: A Decision That “Closely Held” For-Profit, Secular Corporations Have Religious Exercise Rights Is A Reasonable Compromise Under The Law
The American Spectator: “A Majority Of The Justices ... Were Sympathetic To The Claims” Of Hobby Lobby. Following the oral arguments in Hobby Lobby, the right-wing American Spectator seemed pleased with the conservative justices' interest in a “compromise” that would deliver a victory to the “closely-held” craft store chain, supposedly without the decision impacting other publicly traded companies:
Ironically, despite the transparent partisanship of [Supreme Court Justices] Sotomayor, Kagan, and Ginsburg, it was clear that a majority of the justices were at least sympathetic to the claims of the two companies. As Reuters reports, “The U.S. Supreme Court signaled on Tuesday it may allow corporations to mount religious objections to government action, possibly paving the way for companies to avoid covering employees' birth control as required under Obamacare.”
This conclusion was largely due to a suggestion, by Chief Justice Roberts, that it would be possible to rule in favor of Hobby Lobby and Conestoga based on their status as closely held private corporations, while leaving the question of how to deal with corporations whose shares are publicly traded in the unlikely event that such an entity claimed to have religious objections to some federal mandate. Such a ruling he said, would “avoid all the problems” outlined by the Solicitor General if the justices rule against the Obama administration in the cases argued yesterday.
[Justice] Kennedy was particularly interested in the rationale behind exempting some entities from the contraception mandate while declining to exempt others: “You have exempted a whole class of corporations and you've done so under your view not because of RFRA. ... Now, what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?” Justice Scalia also indicated that he was uncomfortable with selective exemptions. [The American Spectator, 3/26/14]
FACT: Such A “Compromise” Would Still Be An Unprecedented Decision That Could Affect 90% Of All Corporations And Open A “Pandora's Box” Of Discrimination
Constitutional Accountability Center: “This Court Has Never Held That Secular, For-Profit Corporations May Assert Rights Under The Free Exercise Clause.” The Constitutional Accountability Center pointed out in its amicus brief that a ruling in favor of Hobby Lobby would be unprecedented because the Supreme Court has never held that the Free Exercise Clause applies to non-religious, for-profit corporations. As the CAC explained, “protection of religious liberty has always been seen as a personal right”:
The corporate plaintiffs' argument that they enjoy free exercise rights under the First Amendment and RFRA is in conflict with the text, history, and purpose of the First Amendment's free exercise guarantee. Amicus submits this brief to demonstrate that throughout our nation's history, corporations have been treated differently than individuals when it comes to fundamental, personal rights of conscience and human dignity. The First Amendment's free exercise guarantee has always been viewed as a purely personal liberty, guaranteeing the right of individuals to worship and exercise religion consistent with the dictates of their conscience. It has never been considered a right possessed by secular, for-profit corporations. Indeed, in the more than 200 years since the First Amendment's ratification, this Court has never held that secular, for-profit corporations may assert rights under the Free Exercise Clause.
History shows that the First Amendment's explicit protection for “the free exercise” of religion, was intended to protect a basic right of human dignity and conscience, one of the “characteristic rights of freemen,” as George Washington put it. From the Founding until today, the Constitution's protection of religious liberty has been seen as a personal right, inextricably linked to the human capacity to express devotion to a god and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional tradition for the obvious reason that a business corporation lacks the basic human capacities -- reason, dignity, and conscience -- at the core of religious belief and thus the free exercise right.
To be sure, the owners of the corporate employers have their own personal free exercise rights, but those rights are not implicated by the contraception coverage requirement because federal law does not require the individuals who own a company to personally provide health care coverage or to satisfy any other legal obligation of the corporation. The law places requirements only on the corporate entities. [Brief of Constitutional Accountability Center in Support of the Government, 1/28/14, via Media Matters]
Cardozo School of Law Professor Marci A. Hamilton: This Compromise Will Lead To “National Unrest” Because “Over 90% Of Corporations Are 'Closely Held'” Like Hobby Lobby. As Professor Hamilton explained, the idea that the Hobby Lobby case can be contained by applying the decision only to “closely held” companies is ridiculous -- the overwhelming majority of corporations, like Hobby Lobby, meet this definition:
The Hobby Lobby case, of course, deals in part with the question whether the federal [Religious Freedom Restoration Act (RFRA)] was or is intended to benefit the owners of large, for-profit, nonreligious corporations. Hobby Lobby's interpretation that it does would open the floodgates to exempt every business owner in the United States from the anti-discrimination laws, because there is no real middle ground. The forces behind Hobby Lobby have tried to argue that the Court should hold for Hobby Lobby because it is “closely held,” but that would not limit the holding to a few instances, because over 90% of corporations are “closely held.” If the Court sides with Hobby Lobby and Conestoga Wood, it will open the Pandora's box of corporate law. If owners of large, for-profit, nonreligious corporations can use their religious beliefs to shape their employee benefits to the detriment of women, expect arguments for differential pay and promotions for women and men, and new requirements for women's dress at work from a wide array of religious believers. Why? Because RFRA invites believers to impose their beliefs on other believers in every sphere. [Justia.com, 5/15/2014]
Lambda Legal: Hobby Lobby's Requested Exemption Would Set The Stage For “Denials of Equal Compensation, Health Care Access, And Other Equitable Treatment For LGBT People.” As Lambda Legal pointed out in its amicus brief to the Court in this case, allowing religious employers to pick and choose which laws they want to follow based on their religious faith could have consequences for anti-discrimination law and “worsen circumstances” for LGBT employees as well as those living with HIV:
Although some forms of religiously motivated discrimination doubtless have receded, our history tells a recurring saga of successive generations asking anew whether our protections for religious liberty warrant exemptions from laws protecting others' liberty and right to participate equally in civic life. Our courts rightly and consistently have recognized that the answer to that question must remain the same: religious beliefs do not entitle any of us to exemptions from generally applicable laws protecting all of us.
The exemption the Companies seek here would mark a sea change -- not only in allowing business owners' religious views about family planning to burden decisions employees are entitled to make for themselves, but also in opening the door to similar denials of equal compensation, health care access, and other equitable treatment for LGBT people, persons with HIV, and anyone else whose family life or health need diverges from their employers' religious convictions. As this Court has recognized, our federal laws and traditions have “afford[ed] constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.” The Court's explanation of the “respect the Constitution demands for the autonomy of the person in making these choices,” spotlights that the “person” whose autonomy is to be protected is the person herself -- not the owner of the for-profit company that employs her.
The Companies' proposed elevation of religious rights to the detriment of others' needs would, in addition to its adverse effects for women's health access and equality, worsen circumstances for LGBT people and people living with HIV that already are challenging. Responding to the request of the Department of Health & Human Services, Amicus Lambda Legal provided examples based on its litigation and the results of the first national survey to examine barriers to care confronting LGBT people and those with HIV. The survey results were shocking. [Brief of Lambda Legal Defense and Education Fund in Support of the Government, 1/28/14]
MYTH: All That Legally Matters Is That The Owners “Sincerely Believe” Their Erroneous Claim That Contraceptives Are “Abortifacients”
National Review Online: It Is “Sufficient” That “Owners Sincerely Believe” Contraceptives Are Abortifacients. NRO editor Ramesh Ponnuru pushed the myth that, as long as the owners of Hobby Lobby “sincerely believe” that contraceptives work like “abortifacients,” then they are within their legal rights to refuse to provide coverage for those drugs:
During the oral argument Justice Kennedy asked whether, on the government's theory of the case, it would be permissible to force companies to cover abortion in their insurance policies for their employees. I think the answer to that question is clearly yes. ... The case itself concerns a company that objects to covering drugs that may cause abortion.
For the purpose of the Religious Freedom Restoration Act, it is a sufficient answer to these points that the owners sincerely believe that offering coverage for the disputed drugs would violate their consciences. They sincerely believe that stopping implantation is equivalent to abortion, that the drugs pose an unacceptable risk of stopping implantation, and that they would be unacceptably complicit in what they consider to be an evil if they offered the coverage. To judge the RFRA claim, judges must decide whether those beliefs justify an exemption from a legal requirement without evaluating the merits of those beliefs.
Pro-lifers object to “ending a pregnancy” and “abortion” because they entail causing the death of a living human organism, which is indisputably what the human embryo is pre-implantation. The “view” that preventing implantation causes the end of a human life in that sense is simply a fact. Of course the law does not define the human embryo as “a human life” in the sense of a person with rights, but of course it does not so define unborn children long past implantation. [National Review Online, 3/27/14, via Media Matters]
FACT: The Religious Freedom Restoration Act Requires More Than A Mere Showing Of “Sincere Belief”
Religious Freedom Restoration Act: Government Can Burden Religious Rights “In Furtherance Of A Compelling Governmental Interest.” Even if these corporations are granted unprecedented religious exercise rights, a court must be convinced the belief is substantially burdened and outweighs the health benefits, reproductive rights, and religious freedom of their employees.
(a) In general
Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
Government may substantially burden a person's exercise of religion only if it demonstrates that application of the burden to the person --
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest. [Religious Freedom Restoration Act, accessed 5/22/14]
Pew Research Religion And Public Life Project: RFRA Is A Multi-Part “Test” And The Court Is Considering Them All. Pew Research explained that the justices have been fully briefed by multiple parties that Hobby Lobby's erroneous belief that the contraceptives at issue are abortifacients is only one part of the legal arguments they must weigh:
Even if RFRA does apply, the government contends, the contraception mandate does not rise to the level of being a “substantial religious burden” (which is required if the law is to apply) because the companies are significantly removed from an employee's decision to use contraception. After all, they point out, Hobby Lobby and Conestoga do not directly provide contraception services to their workers. Instead, they offer their employees health insurance that covers a huge array of medical services, including birth control. In addition, any decision to use birth control rests with the employees, not the insurance providers or the companies.
Finally, the government argues, the mandate advances a compelling government interest because it is part of a comprehensive reform of the nation's health care system, and granting the companies an exemption would deprive some Americans of important benefits provided by that reform. In this case, many women would not receive free contraceptive services, thwarting an important public health goal for the government - that all women have adequate access to effective birth control. As for RFRA's requirement that the mandate be enforced in the least restrictive way possible, the government argues that any alternative to the insurance mandate would mean upending the ACA's health care model (which revolves around employment-based health insurance) and replacing it with something different, a highly impractical option, according to the government. [Pew Research, 3/20/14]
MYTH: Religious Nonprofits And Churches Are Eligible For Exemptions, So Secular Corporations Should Be Able To Opt Out Too
Wall Street Journal: “Corporations Are Often Treated As 'Persons' For Legal Purposes” So Hobby Lobby Should Be Exempted From Providing Coverage For Contraceptives. Writing in support of Hobby Lobby, the WSJ editorial board misrepresented the government's argument that it is impossible for a for-profit, secular corporation to exercise religious beliefs, calling it “remarkable” and “constitutionally unprecedented”:
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as “persons” for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? “Could an employer preclude the use of those items as well?” asked Justice Sonia Sotomayor in the day's first question.
Yet no one is “precluding” anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs. [Wall Street Journal, 3/25/14, via Media Matters]
FACT: Distinctions Between Religious And Secular Corporations Are Long-Established And Hobby Lobby's Requested Exemption Would Swallow The Rule
Dahlia Lithwick: “Where Does It Stop? Why Does Your Boss' Religious Freedom Allow Her To Curtail Your Own?” As Slate legal reporter Dahlia Lithwick pointed out, a Supreme Court ruling in favor of Hobby Lobby's religious owners could significantly impact the religious rights of all American employees, who could be burdened by their employers' beliefs whether they agree with them or not:
Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation's founding that corporations enjoy rights in connection to the purposes for which they were created -- which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don't meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn't make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”
The rest of the problem is self-evident. Where does it stop? Why does your boss' religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer's individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.
Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn't mean they trumped everything else. As we have advanced as a society -- beyond slavery, segregation, homophobia, and sexism -- we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It's never been a perfect accommodation. It can't be. But religious liberty interests are rarely the only -- or even the most important -- interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn't do so at the sufferance of their bosses. [Slate, 8/1/13]
Justice Elena Kagan: Allowing Hobby Lobby Their Requested Exemption Could Lead Other Religious Groups To “Opt Out” Of “The Entire U.S. Code.” Agreeing with Justice Sonia Sotomayor, during oral arguments Kagan warned that Hobby Lobby's radical argument had no clear limiting principle, and could significantly weaken employee protections and anti-discrimination statutes:
And Justice Sotomayor is quite right that there are quite a number of medical treatments that difference [sic] religious groups object to. So one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform.
Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. [Hobby Lobby Oral Arguments, 3/25/14]
Fox News Contributor Steve Hayes: The President Wants Health Insurance Plans To Cover Not Only “These Abortifacients,” But Abortion Too. In an appearance on Fox News with America's Newsroom co-host Bill Hemmer, Hayes described a different challenge to the contraception mandate by falsely equating contraception with abortifacients and speculated government coverage of “abortions themselves” was the president's goal:
HEMMER: The point for this group of Catholic nuns is that if you make us provide birth control, not only does it violate our religious beliefs, but if we do not do it and adhere to the law, we will suffer fines that will cause us to go bankrupt.
HAYES: Right. And the administration -- remember, back in the spring -- proposed what they called a compromise, which would have allowed these non-profit groups to sort of certify that they weren't providing, actually providing this contraceptive and abortifacient coverage but then the insurance companies would be doing so on their behalf and the argument that you hear from those representing this group and others is that's not good enough because in effect what we would be doing is signing off and facilitating the coverage of these kinds of contraceptives and abortifacients for our employees.
HEMMER: Steve, just back up a little bit. Why did the administration think it was necessary to include this contraception mandate in the health care bill to begin with?
HAYES: Well, I think we've heard from the president pretty consistently that he believes that the government should be in the business of covering all of women's health and that is to include birth control, other contraceptives and these abortifacients -- and, I think if they had their way, abortions themselves. [Fox News, America's Newsroom, 1/2/14, via Media Matters]
FACT: The Health Benefits Challenged In Hobby Lobby Are Contraceptives, Not Abortifacients
The New York Times: Contraceptives At Issue “Would Not Meet Abortion Opponents' Definition Of Abortion-Inducing Drugs.” Although the plaintiffs argue that they “sincerely believe” that certain forms of birth control actually work by inducing an abortion, a report by the Times indicates this belief goes against scientific consensus:
Based on the belief that a fertilized egg is a person, some religious groups and conservative politicians say disrupting a fertilized egg's ability to attach to the uterus is abortion, “the moral equivalent of homicide,” as Dr. Donna Harrison, who directs research for the American Association of Pro-life Obstetricians and Gynecologists, put it. Mitt Romney recently called emergency contraceptives “abortive pills.” And two former Republican presidential candidates, Newt Gingrich and Rick Santorum, have made similar statements.
But an examination by The New York Times has found that the federally approved labels and medical Web sites do not reflect what the science shows. Studies have not established that emergency contraceptive pills prevent fertilized eggs from implanting in the womb, leading scientists say. Rather, the pills delay ovulation, the release of eggs from ovaries that occurs before eggs are fertilized, and some pills also thicken cervical mucus so sperm have trouble swimming.
It turns out that the politically charged debate over morning-after pills and abortion, a divisive issue in this election year, is probably rooted in outdated or incorrect scientific guesses about how the pills work. Because they block creation of fertilized eggs, they would not meet abortion opponents' definition of abortion-inducing drugs. In contrast, RU-486, a medication prescribed for terminating pregnancies, destroys implanted embryos.
The notion that morning-after pills prevent eggs from implanting stems from the Food and Drug Administration's decision during the drug-approval process to mention that possibility on the label -- despite lack of scientific proof, scientists say, and objections by the manufacturer of Plan B, the pill on the market the longest. Leading scientists say studies since then provide strong evidence that Plan B does not prevent implantation, and no proof that a newer type of pill, Ella, does. Some abortion opponents said they remain unconvinced. [The New York Times, 6/5/12]
National Catholic Reporter: Conflating Contraceptives With Abortifacients “Is Not Only Misleading, It Does A Profound Disservice To Women.” Prize-winning religious scholar Jamie L. Manson explained the “overwhelming scientific evidence” that debunks the myth that FDA-approved emergency contraception and IUDs covered under the ACA cause abortions:
The reality is that there is overwhelming scientific evidence that the IUD and Plan B work only as contraceptives. Since Ella is new to the market, it has not been studied as extensively. But as of now, there is no scientific proof that Ella acts as an abortifacient, either.
There is only one drug approved to induce abortion. It is called RU-486 (mifepristone) and is not on the FDA's list of approved contraception. It is available only by prescription and no employer is forced to pay for it as part of an employee health plan.
To understand why scientists believe that the IUD, Plan B and Ella are not abortifacients, it is important first to understand the biology of conception. In order for a woman to become pregnant after sexual intercourse, her ovaries must release an egg (ovulation). Sperm can remain viable inside her reproductive tract for five days. Therefore, if intercourse takes place up to five days before ovulation or within two days after, both sperm and egg are viable and the egg cell can be fertilized.
Now, just because an egg is fertilized doesn't necessarily mean that it will develop into an embryo. For that to happen, the fertilized egg must be implanted into the endometrium that lines the uterus. Implantation happens seven days after fertilization, if it happens at all. Scientists estimate that, at a minimum, two-thirds of fertilized eggs fail to implant. Some scientists estimate that the number may even be as high as 80 percent, according to Discover Magazine.
For this reason, according to the medical definition, a woman is not considered pregnant until the developing embryo successfully implants the lining of the uterus. [National Catholic Reporter, 2/20/12]
Rich Lowry: Hobby Lobby Owners Are “Literally” Forced To Provide Coverage For Birth Control. National Review editor Rich Lowry mistakenly characterized the “contraception mandate” as unavoidable for companies like Hobby Lobby who object to contraception and want to “mind their own business”:
Not too long ago, the Greens of Oklahoma City were law-abiding people running an arts-and-crafts chain called Hobby Lobby.
They weren't disturbing the peace, or denying anyone his or her rights. They were minding their own business -- quite successfully and in keeping with their Christian faith. The roughly 600 Hobby Lobby stores stock Christian products, close on Sundays, and play Christian music.
Then one day Uncle Sam showed up to make an offer that the Greens couldn't refuse -- literally. As part of Obamacare, federal law demands that the chain cover contraceptives that the Greens consider abortifacients. The family decided it couldn't comply with the law in good conscience, and its case is now before the Supreme Court.
Hobby Lobby went from an inoffensive business to a scofflaw and an alleged combatant in the “war on women” in no time at all -- and without changing any significant employment or business practice. Thus is the transformation wrought by the coercive sweep of Obamacare, which risks doing as much damage to conscience rights as it has done to the insurance market.
Hobby Lobby is now bizarrely portrayed as wanting to barge into examination rooms. “Selectively denying insurance coverage for contraceptive methods an employer considers sinful,” the liberal legal lion Walter Dellinger wrote in the Washington Post, “makes the employer a party to a woman's medical consultations.” And here the Greens thought they were just selling glue, scrapbook paper, beads, and the like. [National Review Online, 3/25/14]
FACT: Employers That Choose To Provide Health Insurance Must Cover Preventive Health Services -- Including Contraceptives -- Without Cost Sharing
American Religious Organizations: Hobby Lobby Does Not Have To Provide Health Insurance For Their Employees And Cannot “Hold Their Employees Hostage.” The federal government does not require Hobby Lobby to provide comprehensive health insurance at all -- but if they do, a coalition of national religious organizations pointed out in their Hobby Lobby amicus brief that the company may not “hold their employees hostage”:
Plaintiffs' arguments would undermine -- not promote -- religious liberty, by allowing employers to impose their owners' religious beliefs on employees, many of whom will hold different moral and religious views on the use of contraception. This result would be especially unwelcome as the United States and its workforce become more religiously diverse.
Nor is there any good reason to allow this result: application of the contraception regulations to Plaintiffs would not substantially burden religious exercise. First, Plaintiffs are under no obligation to provide their employees with health insurance. If they object to certain types of coverage that must be included in employee health policies, they may stop offering insurance and pay a modest tax to the government instead; this tax is likely to be much cheaper than the cost of buying health insurance. Plaintiffs could pass along the savings to their employees in the form of higher salary, and Plaintiffs' employees would be eligible to obtain health insurance -- including coverage for contraception -- on the public exchanges, often with government subsidies. What Plaintiffs may not do is hold their employees hostage: refusing to include coverage for contraception, but also blocking their employees from obtaining comprehensive, subsidized insurance elsewhere.
Second, even if Plaintiffs wish to continue offering insurance to their employees as part of their compensation, the contraception regulations do not substantially burden religious exercise. For several reasons, any connection between Plaintiffs and contraception is incidental and attenuated -- and thus fails to produce a burden that is “substantial” as a matter of law. [Brief of Religious Organizations Supporting the Government, 1/28/14, via Media Matters]
Political Science Professor Scott Lemieux: “There Is No Contraception Mandate.” As explained by Professor Lemieux, calling the comprehensive preventive health services provision in the ACA a “contraception mandate” is misleading, because the requirement is actually imposed “on insurance plans, not on the corporations per se.” Corporations like Hobby Lobby can object to the contraception included in this provision by refusing to provide any employer-sponsored health insurance to their employees at all:
[T]here is no contraception mandate. Hobby Lobby is not legally required to compensate its employees with health insurance at all. The regulations imposed by the ACA are on insurance plans, not on the corporations per se. What is erroneously described as a “mandate” simply means that if corporations choose to take advantage of the tax benefits for compensating employees in health insurance rather than wages, the insurance has to meet minimum coverage standards. As is often the case with specious religious freedom arguments, the corporation wants it both ways, to get the tax benefits without providing the full benefits to employees. And if the corporation wanted to argue they have no practical choice but to offer coverage, then according to the logic of their own arguments, the religion of the managers is not being burdened; they're not paying for the contraception or making the decision to include it in insurance plans. [Lawyers, Guns & Money, 3/24/14]
The Washington Post's Kathleen Parker: Obama Is Not Concerned About “Eroding Protections Of Religious Liberty” In America. In a February column, Parker claimed that the Obama administration's decision to fight the Hobby Lobby case was evidence of the President's “willingness to challenge, rather than protect, religious liberty in this country,” as well as his desire to impose his own “religious rules” on the American people:
President Obama gave a lovely speech at the recent National Prayer Breakfast -- and one is reluctant to criticize.
But pry my jaw from the floorboards.
Without a hint of irony, the president lamented eroding protections of religious liberty around the world.
Just not, apparently, in America.
Nary a mention of the legal challenges to religious liberty now in play between this administration and the Catholic Church and other religious groups, as well as private businesses that contest the contraceptive mandate in Obamacare.
Missing was any mention of Hobby Lobby or the Little Sisters of the Poor -- whose cases have recently reached the U.S. Supreme Court and that reveal the Obama administration's willingness to challenge, rather than protect, religious liberty in this country.
[O]ne wonders why the Obama administration is so dedicated to forcing people to act against their own conscience. By requiring through the contraceptive mandate that some religious-affiliated groups provide health plans covering what they consider abortifacient contraceptives, isn't the Obama administration effectively imposing its own religious rules? Thou shalt not protect unborn life. [The Washington Post, 2/7/14]
FACT: By Choosing To Violate The Law, Hobby Lobby Is Potentially Infringing On The Conscience And Religious Liberty Of Their Employees
Brigham Young University Law Professor Mark Gedicks: Hobby Lobby May Not “Shift The Cost Of Practicing A Religion From Those Who Believe It To Others Who Don't.” According to religious law scholar Professor Gedicks, it would be inappropriate for the Supreme Court to interpret the ACA in a way that accommodates Hobby Lobby's religious beliefs but burdens those of their employees of a different or no faith, essentially “directing the women who work for these businesses to bear the cost of the owners' anti-contraception religion”:
The First Amendment's establishment clause prevents the government from requiring people to bear the burden of religions to which they do not belong and whose teachings they do not practice. To be sure, the U.S. government should accommodate religious beliefs and practices but only when doing so does not impose significant burdens on others. We accommodate, for example, those who object for religious reasons to sending their children to public school; no one is hurt if these families opt for a private school or home-schooling.
On the other hand, the Supreme Court consistently has condemned government accommodations that shift the cost of practicing a religion from those who believe it to others who don't. For example, the court struck down a state law that gave employees an absolute right not to work on their chosen Sabbath because of the burden it imposed on others. If most employees were Christian and took Sunday off, the statute would have forced the remaining, non-Christian employees to work every Sunday. This, the court said, violated the establishment clause: “The First Amendment ... gives no one the right to insist that in pursuit of their own interests, others must conform their conduct to his own religious necessities.”
If the court grants these businesses the religious exemption they seek, it essentially would be directing the women who work for these businesses to bear the cost of the owners' anti-contraception religion. [The Washington Post, 1/15/14, via Media Matters]
Slate: The Supreme Court Has Held “That The Establishment Clause Prohibits Religious Accommodations That Impose Burdens On Third Parties.” According to law professors Micah Schwartzman and Nelson Tebbe, the Supreme Court has ruled in the past on religious actors hoping to impose burdens on those who worship differently or who don't worship at all and “exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiaries”:
The Establishment Clause allows the government to accommodate religious actors in many situations by removing burdens on religious belief. But in an important line of cases that has not received the attention it deserves, the Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties -- which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiaries. Supreme Court case law on the Establishment Clause does not allow that result. In one decision, among many, Chief Justice Warren Burger quoted Judge Learned Hand, saying "[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." That constitutional principle matters here in a particularly powerful way because Hobby Lobby is basing its claim on a federal statute, the Religious Freedom Restoration Act. But no statute, including one that purports to extend religious liberty, can be applied in a manner that conflicts with a provision of the Constitution.
Strangely, however, this last -- crucial -- reason to think that corporations do not enjoy religious freedom rights is almost entirely missing from the litigation and media coverage so far. [Slate, 11/26/13]
MYTH: The Contraception Mandate Is An Example Of Government “Getting Deeply Involved In The Reproductive Choices” Of Americans
Jonah Goldberg: The Government Is Now “Deeply Involved In The Reproductive Choices Of Nearly Every American.” According to NRO editor-at-large and current Fox News contributor Jonah Goldberg, it is supposedly the federal government -- not the religious owners of Hobby Lobby -- who are inappropriately inserting themselves into private reproductive health care decisions:
Maybe someone can explain to me how, exactly, conservatives are the aggressors in the culture war? In the conventional narrative of American politics, conservatives are obsessed with social issues. They want to impose their values on everyone else. They want the government involved in your bedroom. Those mean right-wingers want to make “health-care choices” for women.
Now consider [the] decision by the U.S. Supreme Court to consider two cases stemming from Obamacare: Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. Democratic politicians and their fans on social media went ballistic almost instantly. That's hardly unusual these days. But what's revealing is that the talking points are all wrong.
Suddenly, the government is the hero for getting deeply involved in the reproductive choices of nearly every American, whether you want the government involved or not. The bad guy is now your boss who, according to an outraged Senator Patty Murray (D.,Wash.), would be free to keep you from everything from HIV treatment to vaccinating your children if Hobby Lobby has its way. Murray and the White House insist that every business should be compelled by law to protect its employees' “right” to “contraception” that is “free.” [National Review Online, 12/5/13, via Media Matters]
FACT: It Is Employers Like Hobby Lobby Who Are Improperly Injecting Themselves Between Women, Their Doctors, And Their Insurance Companies
American College Of Obstetricians And Gynecologists: Allowing A Patient's Employer To Influence Health Care Decisions “Would Undermine The Very Nature Of The Patient-Provider Relationship.” In its amicus brief that it filed in support of the government in the Hobby Lobby case, the American College of Obstetricians and Gynecologists argued that a win for the company could be “disastrous” for the patient-doctor relationship:
Employers' refusal to provide insurance coverage for contraceptives would increase the cost of health care to women. Some women, particularly lower income women, would be unable to access the most medically appropriate method because of the additional expense. As a result, a private, medical decision that should be made by a woman in consultation with her health care provider would be unduly influenced by the employer. Employers should not be allowed to interfere in the provider-patient relationship in this way. Contraceptive access is critical to the health of women and women should not be denied coverage to which they are otherwise entitled by law based on the religious beliefs of their employer-corporation's owners.
Moreover, allowing an employer a religious exemption to the ACA's mandated coverage requirements would have consequences that extend far beyond contraception. Employers who object to any medical treatment, device, or procedure on personal grounds could similarly exclude such services from the coverage they provide -- with potentially disastrous results. Employers could, for example, seek to exclude vaccinations that they deem offensive to their religious beliefs, forcing individuals to pay for objected-to vaccinations out-of-pocket or worse, forgo the medically-recommended vaccinations entirely. The public health implications of allowing a for-profit corporation to assert a religious exemption to the ACA's mandated coverages are self-evident.
In short, health care decisions should be made by patients in consultation with their health care providers based on the best interests of the patient. ... To allow the personal view of a remote party -- the employer of a patient (or the patient's spouse or guardian) -- to play a role in a patient's medical treatment would undermine the very nature of the patient-provider relationship. [Brief of American College of Obstetricians and Gynecologists in Support of the Government, 1/28/14, via Media Matters]
National Review Online: “Up Until 2012, No Federal Law Or Regulation Required Employers To Cover Contraception.” NRO editor Ramesh Ponnuru misleadingly argued that since there was no federal requirement that employers provide contraception coverage to employees prior to 2012, there was nothing “unprecedented” about Hobby Lobby's challenge to the contraception mandate:
From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What's at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is “the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them.”
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers' imposing their views on contraception on employees, nobody talked about it.
What's actually new here is the Obama administration's 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it's the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it's doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful. [National Review Online, 12/1/13, via Media Matters]
FACT: Contraception Mandates Have Existed Since The 1990s, And Were The Law In More Than Half Of The States Before The ACA Went Into Effect
National Conference of Legislatures: “At Least 26 States Have Laws Requiring Insurers That Cover Prescription Drugs Also Provide Coverage For Any FDA-Approved Contraceptive.” Although the ACA's contraception mandate didn't go into effect until 2012, the idea is hardly “new” and was a common state requirement, according to the National Conference of Legislature:
An estimated 10.7 million American women use oral contraceptives, the leading method of contraceptive in the United States. According to the Centers for Disease Control and Prevention, almost half of all pregnancies in the United States are unintended. Unintended pregnancies are associated with increased risk for poor birth outcomes.
Most women in the United States receive health insurance coverage through private plans, and a Kaiser Family Foundation 2010 survey of employers reports that 85 percent of large firms cover prescription contraceptives in their largest health plans. Federal law requires insurance coverage of contraceptives for federal employees and their dependents, allowing a few religious insurers exemption from the requirements.
At least 26 states have laws requiring insurers that cover prescription drugs also provide coverage for any Food and Drug Administration (FDA)-approved contraceptive. These states include: Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Georgia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, Washington, West Virginia and Wisconsin. An additional two states -- Michigan and Montana -- require insurance coverage of contraceptives as a result of administrative ruling or an Attorney General opinion. Two states -- Texas and Virginia -- require that employers be offered the option to include coverage of contraceptives within their health plans. Twenty-one states offer exemptions from contraceptive coverage, usually for religious reasons, for insurers or employers in their policies: Arizona, Arkansas, California, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan (administrative rule), Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Texas and West Virginia. ... Several states require employers to notify employees of their refusal to provide contraceptive coverage. [National Conference of Legislatures, 2/2012]
RealClearPolicy's Robert VerBruggen: “There Are All Sorts Of Reasons We Might Make Birth Control More Accessible ... But 'Gender Equality' Is A Bit Of A Stretch.” According to VerBruggen, the government's defense of the contraception mandate “recast[s] grossly irresponsible behavior as gender-bias victimhood” and is suspect because birth control pills are “available for $9 at Walmart”:
The government states ... that “gender equality” is one reason it is requiring employers to provide insurance that includes contraception with no copay. The basic idea is straightforward: Only women take birth-control pills; therefore women are footing the bill for extra expenses simply because they're women, and the government should step in. Countless pundits have similarly advanced the case that it's “unfair” for women to have to pay for birth control.
It's certainly true that only women take birth-control pills -- and that, as the government points out, overall health-care expenses are considerably higher for women. But it's less obvious why the expenses associated with birth control should be considered in the context of health care. Birth control is “health care” in the sense of coming from a doctor, but it's not health care in the sense of being designed to detect, prevent, or address some sort of ailment. Pregnancy is not a disease, and sex is something people may choose to engage in or not; birth-control pills are merely a product couples use so that they can have sex without becoming pregnant.
Arguably, for the purposes of “gender equality,” the expenses of birth control are best considered in the context of those couples' relationships. Are men really free-riding on the birth-control expenditures of women?
Men often pay for meals and drinks; women usually spend more time and money preparing to go out. Since the pill doesn't address STDs, there's also the question of who pays for condoms. Again, why are we singling out birth-control pills, available for $9 at Walmart, as the expense to gender-equalize?
The government makes more roundabout arguments, too: For example, without an insurance plan that fully covers birth control, some women might choose to go without it but keep having sex, placing themselves “at a competitive disadvantage in the workforce due to their inability to decide for themselves if and when to bear children.” It's a clever argument, if you don't mind recasting grossly irresponsible behavior as gender-bias victimhood.
There are all sorts of reasons we might make birth control more accessible, and all sorts of debates we can have about forcing employers to include it in health plans. But “gender equality” is a bit of a stretch. [RealClearPolicy, 12/4/13]
FACT: All Preventive Services Are Covered By The Affordable Care Act, Including Health Benefits That Are Only Applicable To Specific Demographics
National Women's Law Center: “Employers That Exclude Women's Preventive Health Services From Their Health Insurance Plans While Covering Men's Preventive Services Discriminate Against Women.” The National Women's Law Center explained that as part of the preventive health services recommended by the Institute of Medicine, contraceptive coverage without cost sharing will make great strides for gender equality because “women disproportionately [bear] the costs of reproductive health care, and these high costs negatively affected women's health and well-being”:
[B]y addressing gender gaps in health insurance and remedying the sex disparities inherent in failing to provide health insurance coverage for contraception and related services, the contraception regulations advance the compelling governmental interest in ending gender discrimination and promoting gender equality. Indeed, in passing the ACA, Congress recognized that excluding coverage of women's preventive health services, including contraception, constituted discrimination against women. Providing contraceptive coverage without cost-sharing corrects gender gaps in the provision of health care by ensuring that women, like men, can meet their basic preventive health care needs. Before the ACA went into effect, women disproportionately bore the costs of reproductive health care, and these high costs negatively affected women's health and well-being, as women often lacked access to or forewent necessary health care to keep costs down.
The contraception regulations address this disparity and advance equal opportunity in other aspects of women's lives, thus improving women's social and economic outcomes more generally.
Employers that exclude women's preventive health services from their health insurance plans while covering men's preventive services discriminate against women. Such exclusion means that women are denied the comprehensive preventive health coverage provided to men. Moreover, when effective contraception is not used, and unintended pregnancy results, it is women who incur the attendant physical burdens and medical risks of pregnancy, women who disproportionately bear the health care costs of pregnancy and childbirth, and women who often face barriers to employment and educational opportunities as a result of pregnancy. [Brief for the National Women's Law Center in Support of the Government, 1/28/14, via Media Matters]
The Wall Street Journal: The Affordable Care Act Is “Forcing Religious Groups To Finance Abortifacients.” In a recent editorial, the WSJ argued that the claim that the ACA “support[ed] taxpayer-funded abortion” was true because the law forced religious organizations to pay for contraceptive coverage -- even though the scientific consensus rejects the idea that this birth control causes abortions:
Hard to believe, but an Ohio law lets politicians charge critics with making allegedly false statements. Susan B. Anthony List wanted to put up a billboard in 2010 criticizing Rep. Steve Driehaus for supporting taxpayer-funded abortion by voting for ObamaCare. Mr. Driehaus complained to the billboard company and Ohio Elections Commission. The billboard never went up, Mr. Driehaus lost anyway, but Susan B. Anthony challenged the law as unconstitutional.
Monday's decision concerned whether Susan B. Anthony was able to sue. The Sixth Circuit Court of Appeals had said it could not because Mr. Driehaus withdrew his complaint after he lost. But Justice Clarence Thomas wrote for the Court that this decision improperly minimized the burden on groups whose speech is chilled for fear that they could be sanctioned or sued. Lower courts will now revisit the constitutional challenge.
As it happens, Susan B. Anthony's billboard claim has been vindicated by the Obama Administration's rule forcing religious groups to finance abortifacients in their health-care policies for employees. In a democracy, voters rather than a priesthood of regulators are obliged to sort out the truth or falsity of political claims. Congrats to Susan B. Anthony, and perhaps the Sixth Circuit will seek out some remedial First Amendment education. [The Wall Street Journal, 6/16/14]
FACT: Birth Control Is Not An Abortifacient, And Insurers -- Not Employers -- Reimburse For Contraceptives
Georgetown Law Professor Marty Lederman: Employees Are Reimbursed For Contraceptives Not Because Of Their Employers, But “By Virtue Of The Fact That They Live In The United States.” Professor Lederman recently pointed out that what both Hobby Lobby and non-profit religious employers have in common is that neither of them dictate the reimbursement for contraceptives in health insurance plans:
[This is not a] case about whether the government has required or coerced the Greens to pay for contraception, or about the Greens' religious exercise in their capacity as shareholders. There's no allegation that the Greens are shareholders of the two companies, or that “their” funds would be indirectly used to make the reimbursement payments: Hobby Lobby and Martel are operated by trusts...What the Hobby Lobby brief confirms is that this case is, instead, about whether federal law coerces the Greens to violate a religious obligation in their capacities as corporate directors, i.e., as decision-makers on behalf of the corporations.
Once the HHS Rule goes into effect, it would not be the Greens who “directed” the Hobby Lobby and Mardel insurance plans, in any real sense, to cover contraception: That would, instead, be a legal requirement imposed by the government--and it's a requirement that applies to any and all such plans throughout the nation, whether sponsored by an employer or not. It would be HHS Secretary Burwell, in other words, rather than the Greens, who would be the relevant decision-maker--it is she who would “direct” the employee benefit plans to provide reimbursement for contraceptive services.
Again, the claim for the Greens' possible complicity in the employees' use of contraception is said to be attributable to their decision, as officers-directors of the companies, to choose one type of benefit plan rather than another (to “direct” the plans to cover certain services or not). But the fact that the government has eliminated the option of operating a for-profit employer plan that doesn't include contraception coverage means that the Greens have no relevant choice to make in their capacity as directors, and thus none for which they can be morally culpable. [Balkinization Blog, 6/14/14]