J. Scott Applewhite / AP

Hobby Lobby decision set to reignite conflict around women’s rights

Supreme Court ruling sides with corporations in allowing employers to deny health coverage for birth control

The Supreme Court decision holding that the Affordable Care Act’s contraception coverage requirement violates the religious rights of a privately held corporation is likely to reignite heated political battles pitting faith-based objections to contraception against women’s right to cost-free coverage of birth control.

With midterm elections approaching, the decision will provide campaign trail fodder, escalating conflicts over the meaning of religious freedom, the nature of corporate personhood and the role of the courts.

But even as supporters and critics issued their assessments of the court’s decision, from the opinion it remained unclear how the justices would rule on remaining challenges brought by religious nonprofits or how Barack Obama’s administration would respond to the court’s admonition that it did not employ the least restrictive means of administering the contraception coverage rule.

Women’s rights advocates called the decision in Burwell v. Hobby Lobby Stores Inc. and Conestoga Wood Specialties v. Burwell  stunning, devastating and unprecedented, fearing that the expansion of corporate religious rights will now see a flood of other religious objections and claims.

The court, divided along ideological and gender lines, held in a 5-4 opinion that the Department of Health and Human Services (HHS) regulation on contraception coverage “substantially burdens” the corporation’s exercise of religion, in violation of the Religious Freedom Restoration Act (RFRA).

In the majority opinion, authored by Justice Samuel Alito and joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas, the court also held that closely held corporations are “persons” as defined by the RFRA, with religious rights protected by the statute.

Calling it a “deeply troubling decision,” Louise Melling, deputy legal director of the American Civil Liberties Union, which sided with the government in the cases, said, “For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law.”

The cases were just two of 49 lawsuits brought by for-profit companies raising religious objections to the regulation. While some company owners are Catholic and objected to all forms of contraception, the plaintiffs in the two cases decided on Monday are evangelical Christians and Mennonites and objected only to four of the 20 types of birth control — two each of emergency contraception and intrauterine devices (IUDs). They claimed, contrary to the medical establishment, that they can induce abortions. Although the decision does not apply to publicly traded companies, closely held corporations employ about half the U.S. labor force, according to a 2009 study.

‘For the first time, the highest court in the country has said that business owners can use their religious beliefs to deny their employees a benefit that they are guaranteed by law.’

Louise Melling

deputy legal director, ACLU

Although the majority opinion took pains to emphasize the narrow nature of its ruling, limiting it to religious objections to contraception coverage, activists on both sides of the issue saw its potential impact as much broader. Religious conservatives hailed the decision as an overarching victory for religious freedom — particularly its expansion into the commercial realm — while supporters of birth control coverage worried about its ripple effects, including increased litigation under the statute.

Lori Windham, senior counsel at the Becket Fund for Religious Liberty, which represented Hobby Lobby, called it a “landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business.”

The dissenting opinion, authored by Justice Ruth Bader Ginsburg and joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, inveighed against the “startling breadth” of the decision that enables for-profit companies to “opt out of any law [saving only tax laws] they judge incompatible with their sincerely held religious beliefs.” The decision, the dissent predicted, would introduce “havoc.”

There is “little doubt,” Ginsburg wrote, “that RFRA claims will proliferate, for the court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

Supporters of government’s position, including many religious and civil liberties advocacy organizations that supported the legislative efforts that led to the 1993 passage of the RFRA, decried the decision as an unjustified expansion of the statute’s intent, thereby undermining religious freedom for employees who do not share their employer’s religious views.

The Rev. Welton Gaddy, president of the Interfaith Alliance, which represents 75 faith traditions, called the decision a “grave error” that “radically recalibrated” the balance between religious freedom and other interests.

The Religious Coalition for Reproductive Choice said in a statement that the decision “perverts our nation’s historic understanding of religious liberty.”

The ruling pits supporters of religious rights against advocates for women’s rights.
Jim Lo Scalzo / EPA

In a joint statement, Rabbi Rick Jacobs, president of the Union for Reform Judaism; Rabbi Steve Fox, CEO of the Central Conference of American Rabbis; Rabbi Marla J. Feldman, executive director of Women of Reform Judaism; and Rabbi David Saperstein, director and counsel of the Religious Action Center of Reform Judaism, emphasized their commitment to a “vigorous interpretation” of the RFRA but added, “We are deeply concerned that the court has failed to recognize a notable difference between the religious rights of individuals and of these corporate entities.”

Women’s rights advocates pledged to continue to press for guaranteed coverage for women and even to urge Congress to amend the RFRA to address “all of the possible harmful implications [the case] may carry for many others in many contexts,” said Marcia Greenberger, a co-president of the National Women’s Law Center.

However, language in the majority opinion suggested there could still be uncertainty ahead for religious objectors to the contraception coverage requirement. While houses of worship are exempt from the regulation, the government crafted an accommodation for other religious nonprofits, permitting them to shift the responsibility of providing the coverage to their insurer or a third-party administrator. But 122 such religious nonprofits, including the Little Sisters of the Poor order of nuns, have sued the HHS, claiming that the accommodation still imposes a “substantial burden” on their religious exercise.

The court held that the government’s accommodation for religious nonprofits demonstrated that it had a less burdensome way of achieving its goal of cost-free contraceptive coverage for women and could provide the same accommodation for for-profit companies. But the court declined to decide whether the accommodation — currently the subject of 51 lawsuits — violated the RFRA.

By recognizing, under the RFRA, the government’s “compelling interest” in requiring contraception coverage, the court upheld the regulation but is requiring the government to come up with a method of achieving its goals without, in its view, burdening the objecting corporation’s religious exercise.

What that will look like, then, is unclear and will continue to be a charged political issue, as the court’s decision conflicts with public opinion. A recent poll by the Public Religion Research Institute found that 57 percent of respondents supported requiring privately held companies to provide the coverage.

Ilyse Hogue, president of NARAL Pro-Choice America, said, “The Supreme Court may be divided, but the American people are not.” This issue, she predicted, “will be a main conversation point in 2014.”

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