Today, the Supreme Court of the United States (SCOTUS) ruled that the so-called “contraceptive mandate” of the Affordable Care Act, better known as “Obamacare,” cannot be used to require a closely-held corporation to provide health insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.
While many today were expecting an opinion written by the Chief Justice, the Court offered a surprise when it was announced that the opinion in Burwell v. Hobby Lobby was written by Justice Alito. The decision split the Court 5-4 along ideological lines with Justice Kennedy, as usual, casting the decisive vote.
Before the Court was the question of whether the “contraceptive mandate” violated the Religious Freedom Restoration Act of 1993 (RFRA). Under RFRA, the federal government must not take any action which substantially burdens the exercise of religion unless such action is the least restrictive means of furthering a compelling government interest. The legal community knows this familiar test as “strict scrutiny.”
Before proceeding to the strict scrutiny analysis, the Court first had to determine if Hobby Lobby and the other corporate parties in the case were indeed “persons” capable of the “exercise of religion.” While the legal fiction of a corporation as a “person” is common and well-established, the question of corporations exercising religion was a closer one. The majority concluded that corporations were indeed capable of the “exercise of religion” for purposes of RFRA since, in part, corporations may be established “for any lawful purpose or business.”
Turning to the strict scrutiny test, the majority did not expressly decide the issue of whether or not there was a compelling government interest furthered by the “contraceptive mandate.” Instead, the majority assumed that the government interest (ensuring that all women have access to all FDA-approved contraceptives without cost sharing) was indeed compelling and then proceeded to the second part of the strict scrutiny test.
In the opinion of the majority, the government did not use the least restrictive means possible of furthering the interest of ensuring that all women have access to all FDA-approved contraceptives without cost sharing. This was because, in short, the majority concluded there were other ways of ensuring that women receive contraceptive care that would be less burdensome on the religious exercise of Hobby Lobby and the other parties to the case. The main option proposed by the majority was for the federal government to provide such coverage rather than private employers.
Justice Kennedy wrote a concurring opinion which pointed out that the opinion of the Court should not be used as a shield by companies to practice discrimination under the guise of religious exercise. The majority also went out of its way on several occasions to attempt to limit the scope of the opinion.
The main dissent, written by Justice Ginsburg, states that the opinion of the Court was one “of startling breadth.” In the opinion of the dissent, RFRA was not meant to serve the purpose for which the Court uses it. Justice Ginsburg said that RFRA was not meant to create any new rights, and in her opinion, the Court had used it to do just that.
Justice Ginsburg first argues that RFRA should not even apply in this case since Hobby Lobby and its compatriots should not be able to take advantage of its protections. Further, she goes on to argue that there is no less restrictive, equally effective way for the government to further its compelling interest of ensuring that all women have access to all FDA-approved contraceptives without cost sharing. Finally, the dissent argues that the majority’s opinion will open the door to many other claims of religious exemption that would not be permissible.
This case is one that will have effects on religious rights and business interests. There are many other points and questions that have not been addressed in this post, and the upshot of this case will likely not be known for some time. You can read the lengthy opinion here. The attorneys at Dalton & Tomich, PLC have extensive experience around the country with both religious and business matters. If you have any questions about these areas of law or any others, please do not hesitate to contact us.