Last Monday, five justices of the Supreme Court handed down a decision in Burwell v. Hobby Lobby Stores. The basic outline of the case was already briefly discussed on this blog as well as in many many other locations. In short, Hobby Lobby (and others) sued Health and Human Services (HHS) over the contraception mandate established under regulations to the Affordable Care Act (ACA). Five members of the Supreme Court decided that the mandate violated statutory law, and is thus null and void as relates to closely held corporations whose owners object on religious grounds. This leaves all women working for such closely held corporations in limbo in terms of whether they will be able to access a full range of contraceptive options for both family planning and health related concerns.
Importantly – and insufficiently discussed – is that this case does not concern the Constitution. Although Constitutional claims were brought by some of the parties, the Court didn’t consider them. In fact, the First Amendment’s free exercise clause jurisprudence would have found against Hobby Lobby. Instead, this case is purely about a statutory provision that created an enhanced accommodation protection for religious beliefs in the Restoration of Religious Freedom Act of 1993 (RFRA). As such, this decision will remain in place only so long as Congress chooses to keep it by not repealing or amending RFRA. If this were a First Amendment Case, seemingly these words from Justice Scalia in Employment Div. v Smith would be dispositive:
If prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment is not offended. […]
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.
But this is not a First Amendment case and that is precisely where the decision becomes truly disturbing. What RFRA has pushed the Court to wander into – the minefield that Justice Ginsburg’s dissent identifies – is a decision to have courts determine which religious beliefs are and are not to be accommodated in laws of general application. (Of note: the other disturbing elements of the decision relating to corporations being able to “exercise religion” won’t be discussed here, but are equally concerning).
Initially, it’s worth including the relevant text of RFRA (which is – essentially – the entire text):
(a) In General: Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
(c) Judicial Relief: A person whose religious exercise has been burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution.
There are three basic prongs of RFRA: (1) Does the contraceptive mandate substantially burden a person’s exercise of religion?; (2) If so, is it in furtherance of a compelling governmental interest?; and (3) Is the rule the least restrictive means of furthering that interest.
The Hobby Lobby opinion turns only on the third of these. On (1), the Court accepted that the contraception mandate substantially burdened Hobby Lobby’s owners’ beliefs – on the basis that Hobby Lobby’s owners said that it did. As the Court pointed out, the reasonableness of that belief is irrelevant.
On (2), the Court refused to decide whether there was a compelling governmental interest in women being able to access contraceptive care, merely assuming that to be the case for the purposes of this decision. However, this assumption neither affirms that position nor sets a precedent in that regard.
But on (3) – the least restrictive means test – the Court set a standard that is potentially mammoth in it’s breadth. The Court states that HHS failed to meet the least restrictive means standard on the basis that there were alternatives available:
The most straightforward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs religious liberty, and HHS has not shown […] that this is not a viable alternative. […]
It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of the ACA. According to one of the Congressional Budget Office’s most recent forecasts, ACA’s insurance-coverage provisions will cost the Federal Government more than $1.3 trillion through the next decade. […]
If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal. [emphasis in original] […]
We do not doubt that cost may be an important factor in the least-restrictive-means analysis, but […] RFRA […] may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.
Essentially, the Court has set a standard that if the government can pay for the service on its own, then the government has not met the least restrictive means test of RFRA. The Court offers no other factors to discuss or consider, including dismissing the assertion that RFRA could not compel the government to create entirely new programs to facilitate an accommodation. This is a standard that is virtually impossible to meet as the government’s ability to pay is limited only by the size of the economy and its willingness to tax. This is particularly true if the standard by which an accommodation will be too expensive is set by the reference to the CBO’s $1.3 trillion estimate for the insurance coverage aspects of the ACA.
It’s odd then that the Court goes out of its way to state:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
The Court simply cannot be believed on this statement. Of course this ruling must apply to blood transfusions and vaccinations. The only way for it not to is for the Court to admit it has a preference for certain religious beliefs over others. Few would question the sincerity of some people’s religious beliefs against blood transfusions. While murkier due to the rise of the secular (and unscientific) anti-vaccination movement, few should question that at least some people hold sincere religious beliefs against vaccination. Yet, accommodating these beliefs from an employer sponsored health insurance mandate is absolutely no different than accommodating religious objections against contraception. Blood transfusions (~$220 per transfusion) are less expensive than the IUDs at issue here (between $500 – $1000). While usage patterns are obviously contextual, using the rationale applied to contraception, there’s no reason at all to believe that a blood transfusion insurance coverage mandate is the least restrictive means of ensuring access to blood transfusions. As such, the government should seemingly pay for blood transfusions where employers have religious objections since the government paying is a less restrictive alternative that would still accomplish the government’s compelling interest in providing access.
Likewise, the total vaccine market in the United States has a revenue of approximately $12 billion annually. Compared with the $1.3 trillion cost of the ACA, the entire US market for vaccinations is less than 10% of projected government expenditure. However, adjusted for the number of employers likely to object to the provision of vaccination through their employer sponsored health insurance, and compared against the total cost of the ACA, there’s virtually no basis to state that the government shouldn’t be required to pay for the vaccination coverage in those cases. All those who would have received vaccinations would still be able to do so and those that have true religious objections would still be free to not be vaccinated. From a cost perspective, as with contraception, vaccination coverage is cost-saving to insurance companies, a point the Court indicated was relevant to the decision.
If one wishes to distinguish these cases on the basis of the pre-existing accommodation to the contraceptive mandate that was granted for religious non-profits, it’s a futile effort. Initially, because the Court made clear that the government can be forced under RFRA to create entirely new programs to facilitate accommodations. Moreover, it’s exceptionally easy to imagine the accommodation program for contraceptives being expanded to cover all religious exemption requests that the government is notified of. It would not even be particularly difficult as the relationships with health insurance companies are already in place and would merely require expanding to other areas.
Likewise, there’s no reason to limit such accommodations to specific health service objections. While the Court rightly states that racial discrimination cannot be justified by the decision in terms of refusing to hire individuals on the basis of their race, there’s little rational in the decision that would distinguish the contraception mandate from a religious employers’ sincerely held religious beliefs that providing health insurance coverage to the spouses or children of gay employees violates their conscience. Even assuming a state has anti-discrimination laws in place to prevent discriminatory hiring practices, an accommodation for such employers could be provided by simply having the government pay for the additional coverage itself. That is certainly a less restrictive means of ensuring access to health care coverage is maintained and adjusted by the number of employers likely to claim the exemption and compared against the total cost of the ACA, the cost to the government is likely to be minimal. Likewise, as Justice Ginsburg raises in her dissent, religious objections to minimum wage laws and equal pay for equal work could be accommodated through government programs that top-up the salaries on behalf of the relatively few employers who would ever claim such an exemption whilst still ensuring access to workplace opportunities. With regard to hiring gay employees, there are already indications that religious employers will attempt to avoid President Obama’s executive order on federal contractors and LGBT discrimination based on this decision.
Quite simply, the Court has offered no rational basis to distinguish these cases. Yet, the situation is even worse if we take the Court at its word that these cases are not analogous or not covered by this ruling. If the reasoning is sound on the contraceptive mandate, why the discomfort with applying the same reasoning in these cases? Perhaps there is a concern that if we do apply the exemption to all religious objections, it becomes a death by a thousand needles scenario. While no individual accommodation is likely to become a substantial drain on government resources, the combination of them may and the Court doesn’t initially wish to grant accommodations broadly. But surely – surely – that cannot be a valid basis to determine which religious beliefs are accommodated and which ones aren’t. A first-come, first-serve standard is not a reasonable method for distinguishing which beliefs warrant accommodation.
It is hard to escape the impression that there is a desire to limit the decision to the particular religious beliefs at issue here – abortion and women’s access to contraception. Other religious beliefs – those that may not be as mainstream as Christian beliefs on abortion – are not as worthy. The idea that the courts will now determine which religious beliefs are worthy of accommodation to laws of general applicability and which ones will not – with no established objective test to guide that decision process – should terrify all believers.
In the end, really what this decision should emphasize is the desperate need to separate health insurance from employment. That our employers are primarily responsible for determining what level and type of health insurance we will be able to procure is nonsensical. Once decoupled, there would be no need for such accommodations as employees themselves would be able to purchase the type and level of health care they require. There’s bi-partisan support for separating the two (as evidenced in Bobby Jindal’s health insurance plan), and this case adds further fuel to that fire.
The views reflected in this expert column are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.