Contraception
10:33 am
Tue July 1, 2014

Hobby Lobby Decision Says Corporations Have Religious Freedom; Local Cases Seek More

Update: U.S. district court grants St. Louis Archdiocese an injunction from enforcement of the mandate to provide contraceptive coverage, even with the existing religious accommodation.

In two sharply divided decisions with significant impact in Missouri and Illinois, the U.S. Supreme Court extended religious rights to corporations that object to providing contraceptives to workers and it held that home health workers had a free speech right not to pay union dues.

Both decisions on the closing day of the court were written by Justice Samuel A. Alito Jr. and featured all five Republican-nominated justices voting in the majority and all four Democratic-nominated justices voting in dissent. In the contraceptive case, all of the justices in the majority were men and three of the justices in the dissent were women.

Credit supremecourt.gov

The Hobby Lobby decision affects about a dozen lawsuits in Missouri and Illinois and about 70 nationally. It extends the protections of the Religious Freedom Restoration Act to closely held corporations that object on religious grounds to certain contraceptives. The court said that the Obama administration still could require that women receive contraceptive services but would have to find a less restrictive way of doing it.

The Hobby Lobby decision continues a trend of the Roberts court extending rights to corporations. In the Citizens United decision of 2010 the court ruled that corporations had First Amendment right to make unlimited political expenditures. In Monday’s decision, the court said for-profit corporations had religious freedom guaranteed under federal law because those rights protect the people behind the corporation.

“When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people,” wrote Alito.

Precedent for Missouri case

Timothy Belz, a local attorney who represents Sharpe Holdings in a Hobby Lobby type case here, was succinct when asked how the decision would affect his client. “It means we win,” he said.

Sharpe Holdings includes Ozark National Life Insurance Co., CNS Corp., N.I.S. Financial Services Inc., CNS International Ministries and Heartland Christian College. Charles Sharpe, the founder, owns a large farm in northeast Missouri and believes he should operate his companies in a way that does not promote what his suit calls “abortion on demand."

Belz said that, like Hobby Lobby, Sharpe has no objection to most forms of contraception, but the family opposed four forms of contraception that it thinks act as abortifacients.

Belz gave a window into the future of cases challenging the Obama contraceptive mandate.

Accommodation for religious protest

Belz said that companies like Sharpe will not be willing to settle for the accommodation that the Obama administration has extended to religious nonprofits and that the court seemed to all but approve in Monday’s decision.

Under that accommodation, a religious nonprofit with religious objections can file a form declaring those objections. That triggers an obligation by the health insurance company providing health coverage to pay for the contraceptive services. The cost of that insurance is estimated to be less than the health care costs of pregnancy, so there is no financial burden on the health care company.

The availability of this accommodation was a major reason the court ruled in the Hobby Lobby decision that the Obama contraceptive requirement violated the Religious Freedom Restoration Act. That law requires that the government have a compelling reason for burdening religious belief and that it choose the least restrictive method to achieve its end.

Because the Obama administration already had offered a less restrictive accommodation to religious nonprofits, the requirement that for-profit companies pay for the contraceptive services clearly wasn’t the least restrictive means available, the court said.

But Belz said that neither Sharpe nor religious nonprofits like the Little Sisters of the Poor in Colorado will be satisfied with this accommodation. They are not willing to file the form that activates the obligation of the health care plan to provide the contraceptive services.

The Little Sisters made its objection to the Supreme Court late last year. The court said they could just send a letter to the secretary of Health and Human Services stating their objection, rather than filing a required form. But it’s not clear that the letter triggers the obligation of the health plan to provide the services.

Belz said that the accommodation, “while it’s better than having to pay for or provide those items, it still implicates them, it still requires the nonprofits to be collaborators in the provision of these drugs and device.”

Catholic Charities

The St. Louis Archdiocese filed a lawsuit last year on behalf of Catholic Charities challenging this accommodation. Its suit stated, ”Catholic Charities’ actions trigger the provision of the ‘free’ objectionable products and services. Catholic Charities cannot avoid facilitating the provision of the objectionable products and services for example, by contracting with an insurance company that will not provide or procure the objectionable products and services or even dropping its health insurance plans altogether without subjecting itself to crippling fines, other negative consequences, and/or lawsuits by individuals and governmental entities.”

In granting a preliminary injunction against the federal government, Judge John Ross, writing for the United States Eastern District Court, said

Plaintiffs have a sincere religious belief that artificial interference with the creation of life, including through abortion, sterilization and contraceptives is contrary to Catholic doctrine. By requiring plaintiffs to choose between providing contraceptive coverage to their employees and paying substantial financial penalties if they refuse to do so, the mandate applies substantial pressure on plaintiffs to engage in conduct contrary to their religious beliefs. Therefore, plaintiffs have established a substantial burden under RFRA (Religious Freedom Restoration Act).

What birth control is affected?

Among the biggest questions in the Hobby Lobby decision are its limits. Hobby Lobby and Sharpe object to four methods of contraception – including the IUD and so-called Morning After pill. Other companies object to more methods. The Archdiocese suit appears to object to all forms of birth control.

The National Women’s Law Center said the decision could be applied broadly to all forms of contraception.

Ruth Bader Ginsburg
Credit U.S. Supreme Court

In addition, Justice Ruth Bader Ginsburg said in a passionate dissent that the court had opened the door for employers to try to deny blood transfusions and immunizations based on religious scruples. She suggested they also could discriminate against employees, such as gay employees, based on religious reasons.

Justice Alito said the court was not going as far as Ginsburg claimed. “Our decision … is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests. … The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. Our decision today provides no such shield.”

What is a closely held corporation?

Another question is the definition of a closely held corporation. Alito suggested that publicly traded companies would not be closely held. But some of the country’s largest corporations are not publicly traded.

Samuel Alito
Credit U.S. Supreme Court

Josh Hawley, founder of Missouri Liberty Project and supporter of Hobby Lobby in the Supreme Court, praised the decision in a statement. He said, “Today’s decision is an enormous victory for personal freedom in America. This decision confirms that people of conscience are welcome in business and that all Americans have the right to follow their moral and social convictions in every walk of life. The Obama administration was wrong to assault this freedom. The Constitution has won out today.” 

Among the Missouri companies that benefit from the Hobby Lobby decision, in addition to Sharpe, are American Pulveriser, owned by Paul and Henry Griesedieck; O’Brien Industrial Holding, a Missouri mining company; the Bick Group, owned by a prominent St. Louis family; and Randy Reed Automotive of Kansas City.

Political split is clear

Area Republican members of Congress were swift to weigh in with their opinions – and all supported the Supreme Court’s decision, which they framed as a matter of “religious freedom.” Most avoided specific reference to contraception or contraceptives.

Meanwhile, the region’s Democratic members of Congress – with the exception of U.S. Sen. Dick Durbin, D-Ill. -- were initially silent.

U.S. Sen. Roy Blunt, R-Mo., was arguably the most outspoken among Missouri Republicans. Besides a statement, he also held a news conference in downtown St. Louis to discuss the court’s decision. There he said, “This was never about cost. And never about anything bigger than religious liberty,” Blunt said. “But in the constitution in our country, what’s bigger than religious liberty?”

In an earlier release, Blunt said, “Today’s ruling by the Supreme Court is an important victory to protect Americans’ fundamental right of religious freedom. Americans should not be forced to choose between giving up their business for their faith or giving up their faith for their business. I applaud the court’s decision today, which simply affirms the fundamental religious freedom that Americans have enjoyed for more than 220 years.”

But Durbin said the real issue was the rights of women and workers. “Allowing corporate employers to dictate limits on their employees’ health insurance coverage threatens one of the most fundamental health rights in our country,” Durbin said. “Women and their families should be allowed to make this critical personal and private decision and not be subject to a for-profit employer’s personal, religious beliefs. 

As a result, Durbin added, “I will introduce legislation that requires all corporations using this Supreme Court decision to deny or limit contraception services to disclose this policy to all employed and applicants for employment. Workers have a right to know if their employers are restricting the availability of a full range of family planning coverage.”

U.S. Sen. Claire McCaskill, D-Mo., said she was "disappointed'' in the court's ruling, and feared that it could reduce women's access to birth control.

“A decision about whether a woman should use birth control should be made by that woman and her doctor—not by her boss, and not by politicians," she said in a statement. "And if you believe in preventing abortions, like I do, then it only makes sense to ensure women have equal and universal access to birth control in a way that respects religious freedoms. I’m disappointed that today’s decision may be an obstacle to all of these goals, but I’m hopeful, given the Court’s narrow ruling, we can find a commonsense way forward to ensure every woman can access the care that she and her doctor — not her employer — deem appropriate.”

U.S. Rep. Ann Wagner, R-Ballwin, called the court ruling “a major victory for religious freedom! Our government should not force anyone to choose between violating their religious beliefs or being forced to comply with ObamaCare. This decision sends a direct message to the president and his administration that they cannot continue to trample on American liberties and expect to get away with it …”

U.S. Reps. Jason Smith, R-Salem, and Blaine Luetkemeyer, R-St. Elizabeth, issued similar statements. Smith, whose family runs a business, made a point of observing that “the Supreme Court recognized that Americans do not lose their religious freedom when they run a family business.”

Luetkemeyer, who is considering a bid for governor in 2016, said, “This decision is incredibly encouraging for America and I am pleased that Americans most basic rights – our rights of conscience and religious freedom – will continue to be protected.”

Other opponents, backers

Missouri Right to Life, the state’s largest anti-abortion group, also was pleased with the high court’s decision, saying it “confirms the principles on which our country was founded.”

Right to Life has contended, along with Hobby Lobby’s lawyers, that some contraceptives – such as IUDs -- were actually “abortifacient drugs” because they could prevent fertilized eggs from being implanted in a woman’s womb. Reproductive rights groups and some medical experts have disputed that characterization.

Among the local critics, Planned Parenthood’s soon-to-retire chief executive was the most outspoken. “It’s unbelievable that we are still fighting for access to birth control in 2014," said Paula Gianino, president and chief executive for Planned Parenthood of the St. Louis Region and Southwest Missouri.

“Today, the Supreme Court ruled against women and families, giving some employers the right to discriminate against women and deny their employees access to birth control coverage – access that saved women $483 million in the last year alone,” she added.

Planned Parenthood noted that the Affordable Care Act’s provision guaranteeing contraceptive coverage, with no copay, affected 30 million women. The ruling doesn’t toss out the benefit, but allows an exemption for certain types of corporations.

Could pending cases be affected?

State Rep. Paul Wieland, R-Imperial, is hoping the Hobby Lobby ruling could affect his own lawsuit, which argues similar claims, but from a different angle.

Wieland – who is running for the state Senate -- wants the insurance company that covers him and his family not to cover contraceptives for his family, although the company does cover them for other state employees. Wieland has said that he doesn’t want such coverage for his daughters, who are included in his policy.

So far, the insurance company has declined to remove such coverage for the Wielands.

Wieland lost his case in the lower courts, but is appealing it to the federal 8th Circuit Court of Appeals.

Jo Mannies, St. Louis Public Radio political reporter, contributed to this article. William H. Freivogel, a lawyer, heads the School of Journalism at Southern Illinois University Carbondale. He is a regular member of the St. Louis on the Air legal panel.