May 10, 2015

The Ballooning Effect of Hobby Lobby

Ann Farmer

What do Freshway Foods, Tyndale House Publishers, and Hastings Automotive have in common? They are among the 100 for-profit and nonprofit companies and organizations that have filed lawsuits challenging the contraceptive coverage rule in the Affordable Care Act (ACA), similar to Burwell v. Hobby Lobby Stores, Inc. (573 U.S. ___, 134 S. Ct. 2751), a landmark case decided by the U.S. Supreme Court last year.

On June 30, 2014, the court issued a narrow 5–4 ruling in Hobby Lobby that exempted the owners of that for-profit chain of retail craft stores from offering two kinds of morning-after pills and two kinds of intrauterine devices through their employee health plan as mandated by federal law. The owners claimed that these birth control methods, which they view as akin to abortions, were incompatible with their religious beliefs and therefore a violation of their rights under the Religious Freedom Restoration Act.

Ramifications of the Ruling

Many were surprised and outraged by the decision. By ruling in favor of Hobby Lobby, the Court, for the first time, recognized a closely held, for-profit corporation in the same manner as a person, thereby allowing the religious rights of the company’s owners to trump the health care rights of its 21,000 employees plus their dependents. Wagging fingers descended upon Twitter and elsewhere, with many charging the all-male majority with misogyny.

Following the decision, the court also permanently enjoined the government from enforcing the contraceptive provision against 36 other for-profit plaintiffs. According to Washington, D.C.–based National Women’s Law Center (NWLC), which closely tracks this issue, that means at least 19,500 additional employees plus their dependents were likewise denied some or all of the birth control coverage that other Americans receive under the ACA.

“We’re very concerned about that [coverage denial],” says Gretchen Borchelt, acting vice president for health and reproductive rights at the NWLC, which had filed an amicus brief in the case focusing on what they believed were two compelling interests at stake: promoting public health and gender equality. The brief discussed how birth control is highly effective at reducing unintended pregnancy. But it depends on women’s ability to choose the method of birth control most appropriate for them.

“In the past, a woman’s chosen method of birth control has been driven by cost concerns,” Borchelt explains. “And what the requirement in the Affordable Care Act does is remove those cost concerns. So it would allow women to look at methods equally rather than being driven toward less-effective methods or not using contraceptives at all because of costs.”

In her 35-page dissent, Justice Ruth Bader Ginsburg expressed similar health care concerns, noting, for instance, that “the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage.”

The justice characterized the opinion as a “decision of startling breadth,” adding that, “until today, religious exemptions had never been extended to any entity operating in the commercial, profit-making world” for the obvious reason that the “workers who sustain the operations of those corporations commonly are not drawn from one religious community.”

Ginsburg also expressed concern about the ruling’s more far-reaching implications. Might it open the door, she suggested, to corporations and religious nonprofits to opt out of other laws that they find “incompatible with their sincerely held religious beliefs”? She noted that the decision was lacking in guidance for lower courts that might find themselves dealing with religious objections to, say, blood transfusions (Jehovah’s Witnesses), antidepressants (Scientologists), or medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus).

Religious Objections Persist

Soon after the court’s decision in Hobby Lobby, the Obama administration proposed expanding an accommodation in the law (pending when this issue went to press) to ensure that employees of certain closely held, for-profit corporations (like Hobby Lobby) that have religious objections to the birth control mandate will still be able to access—with no cost sharing required—the full array of birth control options guaranteed under the law.

The ACA already provides an accommodation for religiously affiliated nonprofits that allows their employees to receive the birth control benefit without direct involvement or cost sharing by the religious organization. Nonprofit employers need only fill out a waiver and submit it to their insurance company. The insurance company then notifies the employees and provides them separate coverage.

However, even this accommodation hasn’t satisfied some religious nonprofits, including the Little Sisters of the Poor, which claims that signing the waiver constitutes providing contraceptive coverage, thereby violating its religious conscience. “They want to be exempted completely,” Borchelt says.

To date, 68 lawsuits have been filed by nonprofits, of which at least 43 are still pending, according to the NWLC. The plaintiffs range from the University of Notre Dame in Indiana to the Eternal Word Television Network in Alabama.

In fact, Wheaton College, a nonprofit in Illinois, was specially exempted from having to fill out a waiver. After submitting an emergency application, the Christian educational institution was granted a preliminary injunction by the same Supreme Court all-male majority. The inunction drew a furious dissent from the three female justices, especially because it represented a turnaround from the court’s precedent in Hobby Lobby.

“Those who are bound by our decisions usually believe they can take us at our word. Not so today,” wrote Justice Sonia Sotomayor, referencing the majority’s claim in Hobby Lobby that the accommodation provided nonprofits a less burdensome way to implement the law and therefore justified the court’s decision to exempt for-profits as well.

“It was quite stunning,” says Louise Melling, deputy legal director of the American Civil Liberties Union (ACLU), noting that the Wheaton College decision came down only three days after Hobby Lobby.

The ACLU, which also submitted a brief in the Hobby Lobby case, has long examined the historical role of religion to justify discrimination. “That hasn’t changed,” says Melling, pointing to a recent Colorado case in which a baker refused to make a wedding cake for a gay couple on grounds that it would violate his faith. “If Hobby Lobby has done anything,” she says, “it’s to add fuel to the fire.”

At least in the Wheaton College case, she notes, the court issued a preliminary injunction. “It means it’s not a final decision,” Melling says. “It’s not over.”

Four courts of appeals have already addressed the question of whether signing the accommodation presents a substantial burden on the nonprofits’ religious exercise. “All four have said no,” Melling observes. “And I think they got it right.”

The Controversy Continues

Both the ACLU and the NWLC continue to campaign on this controversial issue. The NWLC has installed a toll-free hotline called “Cover Her” and e-mail service for people who are having trouble obtaining their birth control benefit under the law. “We help them figure out why they’re not getting it,” Borchelt explains.

She says the NWLC has also been tracking where Hobby Lobby is referenced in other types of cases in which people are claiming some kind of right based on that decision. “We’ve found it surprisingly more than we thought, just in the first six months,” Borchelt notes.

One case that has received press attention is Perez v. Paragon Contractors, in which Vernon Steed, leader of the Fundamentalist Church of Jesus Christ of Latter-Day Saints (which practices polygamy and is an exiled offshoot of the Mormon Church), invoked Hobby Lobby to refuse to testify about child labor allegations. In Perez, children were allegedly kept from school in order to pick pecans on a private Utah ranch without pay. When subpoenaed by the U.S. Department of Labor to discuss the “internal affairs” of his church, Steed refused, citing Hobby Lobby and the Religious Freedom Restoration Act.

“The judge agreed with that [refusal],” Borchelt says,“which was kind of unbelievable.” She notes that in another case someone invoked Hobby Lobby to get out of paying back taxes, and in another a school cited Hobby Lobby as support for its argument that it didn’t have to abide by the National Labor Relations Act. “So we have seen it crop up in other places, which is unfortunate,” Borchelt says.

“When the Hobby Lobby decision came down,” she continues, “we said, even though the court was trying to limit it to birth control, we thought it set a very dangerous precedent. We were worried about not only putting other health care benefits at risk, but putting other employee protections at risk. And we certainly have seen that that is the case.”

Ann Farmer

Ann Farmer is a Brooklyn, New York–based freelance journalist who covers breaking news for the New York Times and contributes stories on culture, law, crime, and other topics to publications including Emmy, DGA Quarterly, Budget Travel, and others.