The Supreme Court’s Hobby Lobby decision may not be as big a threat to contraceptive coverage for women as it first appeared.
After a few weeks of legal sleuthing, several leading Supreme Court experts think the court has signaled it will approve a compromise to provide free contraceptive coverage to women who work for companies and religious nonprofits that object to the coverage on religion grounds.
In the days after Hobby Lobby, religious nonprofits appeared to be big winners. A federal court in St. Louis ruled that the St. Louis Archdiocese and Catholic Charities did not need to abide by the Obamacare contraceptive mandate while challenging it in court.
And the U.S. Supreme Court told Wheaton College in Illinois that it did not need to sign a form that the government requires to trigger contraceptive coverage.
The Wheaton decision was widely portrayed as the second shoe dropping. Slate headlined: “While you were sleeping, Hobby Lobby just got so much worse.”
But the impact of the Wheaton College decision may have have been quite the opposite, say experts, including Tom Goldstein, a leading Supreme Court lawyer.
Figuring that out required detective work a little like Sherlock Holmes’ in the case of the dog that didn’t bark. Except in this case it’s the justice who didn’t write. That justice was Stephen Breyer whose name was entirely absent from the Wheaton College opinion, but whose vote may have been important to triggering contraceptive coverage.
More later on what Breyer may have accomplished without leaving fingerprints.
First, back to Hobby Lobby.
Broad or narrow
From the moment that the Hobby Lobby decision was announced on June 30, a vigorous debate has been waged about whether it was a narrow opinion that would not impede women from obtaining contraceptive care or a broad one that could block contraceptive coverage.
John Inazu, a Washington University law professor who supported the Hobby Lobby decision, viewed it as narrow. He does not think it will open the door to broad use by big private companies. And he points out that it is based on a federal statute that can be changed, not on the First Amendment.
His colleague at the law school, Elizabeth Sepper, saw the decision as sweeping. She wrote it was “the corporate equivalent of the road to Damascus. Many more corporations will find religion to opt out of regulation that affects their bottom line. Before Hobby Lobby, businesses lost claims to fire pregnant women, refuse to promote non-Christians, discriminate against gays, and pay below the minimum wage. After Hobby Lobby, they seem likely to succeed.”
Sepper added: “The all-male majority just couldn’t see that refusing to provide a health plan that meets women’s health needs — while covering everything men need — is in fact discrimination.”
So what did Hobby Lobby decide?
The court ruled 5-4 that the Obamacare contraceptive mandate violated the religious freedom of closely held corporations, like Hobby Lobby, that provided health care to their employees but objected to providing contraceptives that they thought acted as abortifacients.
It was the first time that the Supreme Court had ruled that corporations could claim the rights to religious freedom.
The court said the contraceptive mandate violated the Religious Freedom Restoration Act (RFRA). Under that law, the federal government cannot burden a person’s religious belief unless it has a compelling goal and uses the least restrictive means possible.
It’s that least restrictive part that caused the problem. Justice Samuel Alito said there clearly was a less restrictive means available because the Obama administration had offered religious nonprofits, like Catholic Charities, a less restrictive alternative.
Religious nonprofits could inform the government of their religious objections on a Form 700. That would notify the administrator of the organization’s health plan that it was required to provide the contraceptive services. This would not be a burden on the health plan because providing contraceptives is cheaper than paying for pregnancy.
Alito, who wrote the Hobby Lobby decision, emphasized that it was narrow. But Justice Ruth Bader Ginsburg was not buying it. She predicted the decision was much broader than Alito claimed. Many big companies are private, she pointed out, and she noted that Alito had only promised that the opinion would not open the door to discrimination against blacks. That left open discrimination against gays or women.
Three days after the court had turned out the lights on the 2013-14 term, it issued a follow-up order involving Wheaton College in Illinois. In an unsigned opinion the court told the religious college that it didn’t need to fill out the Form 700 that the Obama administration requires to take advantage of the religious accommodation for religious nonprofits. The form, on which the religious group states its objections, also triggers coverage for the women involved.
But Wheaton College argued that signing the form was itself a violation of religion freedom because it made the college complicit in providing the contraceptives that violated their religion.
The court told Wheaton that it could follow the same path that the court had approved seven months ago for the Little Sisters of the Poor in Colorado – skip the Form 700 and just send a letter notifying the government of the religious objection.
The women on the court reacted angrily. Justice Sonia Sotomayor wrote, “After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the court now, as the dissent in Hobby Lobby feared it might…retreats from that position. That action evinces disregard for even the newest of this court’s precedents and undermines confidence in this institution.”
But Goldstein, the Supreme Court lawyer, wrote that the court’s order in the Wheaton case actually was not a win for Wheaton but instead made it clear how the Obama administration could enforce its religious accommodation against religious nonprofits whether or not they signed Form 700.
Wheaton “as a practical matter…got much less than it wanted,” wrote Goldstein. “Wheaton wanted to be able to refrain from taking any step that would facilitate free contraception for its faculty or students. But the court’s order states unequivocally that the government can require Wheaton to provide it with notice of its religious affiliation and can on that basis ensure that the same coverage is provided."
The key passage in the majority opinion in the Wheaton case is hardly majestic prose, but it may be extremely important. The court wrote: “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives."
In other words, the government can require the health-care provider to provide Wheaton’s students and workers with the full range of contraceptive services even if it does not file a Form 700.
One reason the Wheaton opinion caused confusion is that it was unclear how Breyer had voted. He did not join the three dissenters, nor is his name listed on the opinion, which was unsigned. But Goldstein said the court would have needed five votes for the opinion and that Breyer had to be the fifth. Conservative Justice Antonin Scalia couldn’t have provided that vote because he refused to sign on to the reasoning of the opinion – probably because he opposed the opinion’s path to contraceptive coverage.
So, as a result of the justice who didn’t write, Breyer, the next generation of challenges to the Obama contraceptive mandate may be doomed. These are the ones by the religious nonprofits like the St. Louis Archdiocese. As a result, women working for organizations like Catholic Charities would receive contraceptive coverage from their health plans and female students at Wheaton also would be covered.
Thomas Reese, in the National Catholic Reporter, had much the same analysis. He wrote: “My prediction: The court will give the bishops a win in their fight against Form 700, but it will not strike down the accommodation or stop contraceptives from reaching employees of religious nonprofits. It appears that all of this litigation is over a two-page form….Whether eliminating Form 700 is worth the millions of dollars spent on this fight is another question.”
Discrimination Against Gays
Hobby Lobby could have a bigger impact on the rights of gays and lesbians than on the availability of contraceptives.
Gay rights groups responded to Hobby Lobby by dropping their decades-old support for a federal law banning discrimination against gays because it includes a religious exception they fear would eviscerate the law because of Hobby Lobby.
Alito’s assurance that Hobby Lobby would not affect anti-discrimination laws was written in a way that was less than convincing.
Alito wrote the decision could not be used as a “shield” to allow religious employers to discriminate. “The government has a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.”
By citing race only, Alito raised alarm bells. Combatting racial discrimination is a compelling state interest, under Supreme Court decisions. Combating sex discrimination is not. And there is no federal law banning employment discrimination against gays.
Timothy Belz, a lawyer who represented Sharpe Holdings in that Hobby Lobby case, said on "St. Louis on the Air" this week that while religious groups were losing the fight to stop same-sex marriage, Hobby Lobby would provide a basis for “religious employers who don’t want to hire a person engaged in a same-sex relationship or marriage.” He added, “The playing field is going to shift to the rights of people who don’t want to go along with same-sex marriage and that is going to be the next big battlefield.”