Life as an Extreme Sport

Hobby Lobby, Contraception, & the Supreme Court Ruling

The Roberts CourtAs expected, the last case ruled on before the Supreme Court of the United States adjourned until October was the Hobby Lobby/Conestoga case. For those unaware, this case is based on the Affordable Care Act’s contraception mandate, classifying contraceptives as preventive healthcare required under all insurance plans without a co-pay. Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.We’re just going to sigh and ignore proper science right now, okay? Because otherwise we’re going to go nowhere but to the nearest hard surface. With our heads.

Unfortunately, SCOTUS ruled for Hobby Lobby/Conestoga, agreeing that the contraception mandate of the Affordable Care Act violates the Religious Freedom Restoration Act.

Now, before we get into the particulars,I am not a lawyer; let’s just get that out of the way up front. let’s go over the generals:

  • NO, SCOTUS did not overturn the contraception mandate.
  • NO, SCOTUS did not rule companies do not have to provide contraception to employees.

This is a limited ruling that does not affect publicly-held corporations, or privately or closely-held corporations that do not also have sincere religious beliefs.

So what did happen? SCOTUS ruled that closely-held corporations owned by people with sincere religious beliefs do not have to provide contraception coverage that violates those sincerely-held religious beliefs.

It’s important to note that this is a very, very narrow ruling. In the majority rule, Justice Alito noted that this particular ruling would not give companies room to discriminate; for example, a closely-held corporation owned by folks whose religion finds gay people an abomination would not be allowed to freely discriminate against gay folks. This ruling does not overturn federal protections for suspect or quasi-suspect classes.

…your eyes just glazed over, didn’t they? At the end of this post, you’ll find a treatise on legal vocabulary that might help the above make sense. For now, let me put it into English for you: highly religious families that own large businesses that employ lots of people but don’t share that stock love around are allowed to deny female employees certain types of contraception based on scientifically incorrect notions of what an abortion is, but that’s all they’re allowed to do.

In line with the Citizen’s United ruling that says corporations (are people too) have free speech, this ruling says that a small, small group of companies in the United States are protected under the RFRA, because they have a religion.

In the run-up to this decision, I’ve quipped (repeatedly) that I’ve never seen a corporation in a church before. SCOTUS would reply: when that company is held by five or fewer related family members with shared sincere religious beliefs, if you’ve gone to church with that family, you’ve seen that corporation in church.

In other words, there is no firewall between the religious beliefs of a family and the company that the family runs. (This also would apply to a small group of people who share a sincere religious belief but are not related.)

The reason for this is that the ACA mandate fails the Sherbert Test. Justice Kennedy said that he believed that the option for religiously-affiliated organizations, such as Catholic hospitals, to opt-out of contraception coverage meant that the government could not prove that requiring Hobby Lobby and Conestoga Wood (or other closely-held corporations with sincere religious beliefs) to include contraception coverage in the health policies they contribute to was the least restrictive or burdensome option. In the case of the religiously-affiliated non-profit organizations, women are able to receive contraceptive coverage through separate health policies provided by the federal government at no charge; Justice Kennedy clearly feels that this will be extended to women who work at closely-held corporations with sincere religious beliefs against some contraceptives.

Of course, as SCOTUSblog noted, there are a couple of issues here. The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

The smaller issue is an interesting one. There are some non-profit groups that have argued that even signing a certificate that says they object to providing contraception coverage for their female employees is a violation of the RFRA. Today’s Hobby Lobby/Conestoga ruling seems to imply that SCOTUS does not find the process of certifying beliefs an undue burden under RFRA, which could effectively shut down some 20-odd cases around the country.Emily Bazelon has more about these cases over at Slate.

So in sum, closely-held corporations can express religion and are protected under RFRA as long as it’s a sincerely-held religious belief, but the expression of their religious beliefs does not go so far as to allow discrimination; women employed by these companies should still be able to receive free contraceptive coverage from HHS, like women who work for religious non-profits do; and signing a piece of paper to indicate that your company’s sincerely held religious beliefs is probably not going to be viewed as an undue burden by SCOTUS.

It’s an interesting ruling, and one that I suspect isn’t going to make too many people happy, even while people will incorrectly make absurd statements on what the ruling means.

My personal take is a bit more esoteric: I actually think this Supreme Court is laying the groundwork for a robust federalized healthcare for everyone; clearly, they have established that it is appropriate for the government to offer and require insurance. This shifts another bit of the burden away from companies and towards the federal government, and I suspect that these tiny shifts are what it’s going to take to end up in a system of basic healthcare services provided by the government, with the option for additional insurance offered by companies as hiring incentives or purchased on the market for those interested. The question then becomes: is this intentional by Justice Alito and the other conservatives judges, or is this just happy coincidence as they strive to protect the rights of corporations to be people?


Let’s talk about vocabulary, everyone’s favourite subject! In specific, let’s get some definitions for SCOTUS vocabulary and legal language out and down on paper, so that we’re all on the same page.Remember, I am not a lawyer.

Closely-held corporation
A closely-held corporation is a private company owned, directly or indirectly, by a small group of people; the majority of the shares are held by five or fewer people.So sayeth the IRS. These are not publicly traded companies; if a shareholder wants to sell, it must be to an existing shareholder.

Religious Freedom Restoration Act
The RFRA is a 1993 law, signed by Bill Clinton, that prevents laws that substantially burden a person’s free exercise of religion. RFRA applies to the federal government, not state governments. As ACA is also a federal mandate, it is subject to scrutiny under RFRA. The law reinstates the Sherbert Test to see if an individual’s right to free expression of religion has been violated by the government, and mandates that any challenge involving the Free Exercise Clause of the First Amendment be subject to strict scrutiny.

Sherbert Test
This is the test used to determine whether or not the government has violated free expression of religion. For an individual, (and remember, corporations are people, too!), the court must determine:

  • whether the person has a claim involving a sincere religious belief, and
  • whether the government action is a substantial burden on the person’s ability to act on that belief.

If these two elements can be established, the government must then prove that it:

  • is acting in furtherance of a “compelling state interest,” and
  • it has pursued that interest in the manner least restrictive, or least burdensome, to religion.

Strict Scrutiny
This is the most stringent standard of judicial review available, and is generally invoked in situations that either involve suspect classifications or constitutional challenges.

Suspect and Quasi-Suspect Classification
A suspect classification is any group of people that meet criteria suggesting they have been or will be the subject of discrimination. This criteria includes a history of discrimination, hostility, prejudice, and stigma against the group in question, which can be based on stereotypes; immutable or highly visible traits; little to no political power; their distinguishing features do not render the group unable to meaningfully contribute to society.

The Supreme Court recognizes race, national origin, religion and alienage (not being citizen of the United States) as suspect classes. Gender, parentage (legitimacy), and sexual orientation are recognized as quasi-suspect classes.

Sincere religious beliefs
First, let’s be clear: a religious belief does not necessarily mean a belief in God(s). In Welsh v. United State, SCOTUS ruled that “the definition of “religion” is not dependent on a belief in a “Supreme Being.” A person’s beliefs may be deemed “religious beliefs” if those beliefs occupy in the life of that individual a place parallel to that of God in traditional religions.”All referenced court cases in this section are from the document “Selected Cases on Religious Discrimination” prepared by the Office of Legal Counsel for the US EEOC.

In Brown v. Pena, SCOTUS cited three things to determine whether or not a belief is a religious belief:

  1. whether the belief is based on a theory of “man’s nature or his place in the Universe;”
  2. which is not merely a personal preference but has an institutional quality about it; and
  3. which is sincere.

Unique moral preferences thus are not also religious beliefs. (So, for example, being a vegan without also being a member of a religious order whose institutional and accepted religious texts required a vegan diet, would not be a religious belief.)

And finally, how do you determine if said religious belief is sincere? There are multiple cases that discuss what a sincere belief isEEOC. v. Ilona of Hungary, Inc; EEOC v. Union Independiete De La Autoridad De Acueductos y Alcantarillados De Puerto Rico; Hussein v. Waldorf-Astoria; Bailey v. Associated Press; etc. and determined that elements of sincerity for the purpose of religious belief includes following the rules and restrictions of the religion in question, attendance to appropriate worship services, acknowledgment of religious holidays, association with other people of the same religion, and so on.


  1. I think the issue is that loads of companies– a majority in fact — would qualify as “closely held.”

    Then there’s the issue of how many of those suddenly discover their sincere religious beliefs tomorrow. I suspect many will.

    A third issue is this: “Hobby Lobby and Conestoga Wood both objected to this, saying that covering some forms of birth control, like the IUD/IUS or Plan B, violated their religious beliefs by requiring them to fund abortive medications.”

    The problem is that the very definition of abortive medications used was the one from Hobby Lobby, not the one that comports to, you know, reality.

    This leaves the door open to people filing new suits that will cover birth control pills, for instance, which are “abortive’ in the same way as IUDs — by a completely whacked-out definition.

    Then there’s the issue of other lawsuits that could be filed. And the court has left itself few choices now but to rule in their favor. What if a religious employer running a small company files a suit saying that they believe gay people are an abomination, so he doesn’t want to cover HIV meds? By the logic of the court today they would be able to do that, and don’t think for one second that suit isn’t coming.

    What if getting pregnant is life-threatening? For some people it is. How do we square that one now?

    The bigger one is whether or not the Department of Health and Human Services has the authority to extend the non-profit contraception exemption to closely-held corporations; I expect we’ll see the Obama Administration clarify this quickly (and most people seem to think that HHS has the authority to do this, including SCOTUS).

    You have far more confidence in the court than I do.

    1. Hi Jesse, thanks for the response (and sorry for the delay – I was about half-way through typing a response to you when the power went out at work; exciting). You are actually right; about 90% of the companies in the United States actually are closely-held companies. The thing is, it’s not just about being closely held. The other criteria is the sincerely-held religious beliefs, and that’s not something the Court takes lightly. There are pages of case law, and it’s pretty specific. Some company isn’t going to be able to start saying things tomorrow and claim sincerely-held religious beliefs. (There have actually been cases where a law has changed and someone tries to claim being religious and has been denied based on the timing.)

      But, even aside from that, it’s worth questioning how many of those 90% were even required to implement the Affordable Care Act; mostly closely-held companies (as opposed to privately-held companies) are family owned and operated businesses, and many of those are too small to trigger ACA requirements. (I’d actually really love to see an analysis of that, but I’m having a hard time finding data at the moment…can’t imagine what’s clogging up Google.)

      As for comporting to reality, at least with the IUD, the reality is that it is used as an emergency contraceptive to prevent blastocysts to implant. I do agree that it would be nice if we could get science to matter a bit more to people (and noted that in footnotes). But, we also sort of have to ignore the science because we don’t want SCOTUS regulating science. Well, at least I don’t. Because I’m terrified what might happen with, say, climate change, should it reach them.

      I don’t think it will allow people to file suits against contraceptive pills, in part because all a company has to do is prove they’re closely held and have sincerely held religious beliefs that say contraceptive pills are against said religious beliefs. If it passes the Sherbert Test, then they probably can have the government step in to cover that (assuming that HHS is allowed to cover for-profits, as Kennedy indicated).

      SCOTUS already saw your example about gay people being an abomination, and noted that, as case law has already established, sincerely-held religious beliefs did not allow discrimination (especially of suspect and quasi-suspect classes). Beyond that, such a challenge would fail the Sherbert Test: there is currently no other way in which to offer the HIV medications someone needs.

      Essentially, I think what won the Hobby Lobby case today was the non-profit bypass the Obama Administration created last year. By doing that, they created an inexpensive way to get certain forms of birth control to women whose religious employers objected in paying for some of them. By doing so, the ACA mandate is no longer the least burdensome, least restrictive manner of providing contraceptive coverage to women. Because the government has shown it can do it itself.

      That situation, however, doesn’t exist for HIV drugs, or blood transfusions, or lots of other potential arguing points over sincerely-held religious beliefs. And that’s why I sort of wonder if what we’re seeing is the groundwork for a single-payer system. It’s not that I have faith or confidence, but that I can’t see where else the ruling can lead, because of what the case law they’re generating seems to say. That case law seems to say: if the government can provide health care services for equal or less cost than a business, then that is the manner least restrictive and least burdensome and has to be done. I’m not sure if SCOTUS realizes this, has to do it because of implications from Citizen’s United, or has to do it because of the Obama Administration’s non-profit ruling last year. (And if it’s the latter, I’m not sure if that was intentional brilliance from the Administration, or accidental.)

      Also, when getting pregnant is life-threatening, it’s no longer preventive medicine but curative. So all of the contraceptive options are back on the table. (In fact, this is how Notre Dame and other religious organizations got around the “we won’t prescribe an IUD for birth control” objection for years; it was “medically necessary” rather than “for birth control. In fact, if I recall correctly, that’s how much Catholic universities got around the ban on having contraceptives on campus; the pill had to be available to regulate abnormal menstruation or PMS or whatever, and so on.) So yes, Hobby Lobby actually does have to cover an IUD…if it’s medically indicated (rather than chosen birth control method).

  2. A most excellent post, Kelly. Your communication skills are superb. Very interesting concluding idea. I love arguments that point out how the very actions of the opposition will eventually necessitate universal health care. I just hope it happens in my lifetime.

    1. Thanks, Jan! I have no idea if I’m right, and it seems like a really odd conclusion, but it’s also hard to arrive at anything else other than “Citizen’s United is having some really weird consequences…”

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