Opposition to Hobby Lobby Decision Shrill, Ill-informed
This post by attorney Kenneth Craycraft, Jr., was also submitted to the Cincinnati Enquirer, where it was printed with the title, “Hobby Lobby Decision a Narrow Win for Religion.”
Predictably, reaction from the left to Monday’s U.S. Supreme Court decision in the Hobby Lobby case has been as shrill as it is ill-informed. It is important to understand how narrow the court’s reasoning is in holding that corporations owned by a single person or family may be exempt from paying for certain forms of birth control drugs.
Hobby Lobby is solely owned and operated by David and Barbara Green and their adult children, whose religious beliefs are expressed in corporate documents and practices. They object to the use of a certain class of contraceptive drugs that destroy embryos after fertilization by preventing them from implanting on the uterine wall. These drugs are known as abortifacients.
Regulations under the Affordable Care Act mandate that if companies the size of Hobby Lobby provide subsidized insurance coverage to their employees, which Hobby Lobby does, they must provide free coverage (without a required copayment) for at least four forms of birth control that are abortifacients. Failure to do so results in fines against the company. Hobby Lobby filed a lawsuit under the Religious Freedom Restoration Act (RFRA) arguing that this provision of the ACA should not be enforced.
Under RFRA, federal legislation must show a compelling government interest if an otherwise valid law encroaches upon a person’s free exercise of religion. The Act provides that the government “shall not substantially burden a person’s exercise of religion” unless that burden is the least restrictive means to further a compelling governmental interest.
In Hobby Lobby, the Supreme Court determined that the ACA contraception mandate violates RFRA under a three-part analysis:
• Hobby Lobby is a “person” under federal law, and thus RFRA applies to it. Corporations and other organizations are “persons” for many legal purposes, and nothing in the ACA, the court held, provides a reason to depart from this principle in the Hobby Lobby case.
• The contraceptive mandate substantially burdens the Greens’ free exercise of religion. There was no dispute that the Greens’ religious beliefs are sincerely held, and that the contraception mandate violates those beliefs. To pay directly for abortifacient drugs through subsidized health insurance premiums, therefore, is a substantial burden on their exercise of religion.
• The contraceptive mandate is not the least restrictive means to accomplish Health and Human Services’ goal of providing free access to abortifacient drugs. The federal agency may ensure that Hobby Lobby employees have access to free abortifacient drugs through any number of ways without directly requiring Hobby Lobby and the Greens to pay for it. For example, HHS could assume the cost of these drugs for women who cannot obtain them under their health care plans. Or, HHS could extend the same accommodation that it already provides to some nonprofit employers who have religious objections to the mandate, in which case the insurer provides the free coverage without imposing cost-sharing on Hobby Lobby.
No Hobby Lobby employees will have any less access to abortifacient drugs, at any greater cost, than they had before the decision. None. Nor does the Hobby Lobby decision extend to publicly held corporations that have many shareholders. Finally, the Hobby Lobby decision does not apply to any other types of coverage under standard insurance policies. Other coverage requirements may have more compelling government interests, and may be the least restrictive means of achieving those.
Hobby Lobby is a victory for the exercise of religious freedom. But, contrary to the hateful rhetoric after the decision, it is not a defeat for free access to any form of birth control for any person covered under an employee-provided health care plan.
Kenneth R. Craycraft, Jr., is a resident of Milford and an attorney with the Shade Law Group, LLC, Mason. A former professor of Moral Theology at St. Mary’s University in San Antonio, he is the author of The American Myth of Religious Freedom.
Image courtesy HobbyLobbyCase.com.
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