The Supreme Court and Hobby Lobby: Will Kennedy disappoint supporters of contraception coverage?

Bazelon and Weisberg Discuss the Supreme Court

Bazelon and Weisberg Discuss the Supreme Court

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April 2 2014 9:45 AM

“I Think the Court Will Disappoint You”

Emily Bazelon and Jacob Weisberg discuss Hobby Lobby and the religious exemption.

Emily Bazelon and Jacob Weisberg
Emily Bazelon and Jacob Weisberg

Photo illustration by Slate. Photos by Kathleen Kincaid.

Welcome to Politics Tuesday, where a revolving cast of Slate politics writers and editors brings Slate Plus members one special extra.

Emily Bazelon was on vacation when the Supreme Court heard oral arguments in Sebelius v. Hobby Lobby. We asked Emily’s pinch hitter on last week’s Gabfest, Slate Group editor-in-chief Jacob Weisberg, to see if Emily had any reaction to add to the Hobby Lobby discussion

Jacob Weisberg: Emily, welcome back from South America! Did you climb Machu Picchu?

Emily, skirting her Gabfest responsibilities.

Courtesy of Emily Bazelon

Bazelon: Thank you! I did climb it, in the rain with my intrepid husband and children. And I was pretty terrified for the last 20 minutes, even though I stayed away from the stairs of death. We lucked out at the top: The clouds parted, and we got to look back on the ruins spilled out along another slope below us. I kept thinking on this trip about mystery v. story. Machu Picchu has mystery, because scholars and archaeologists have competing theories about its function for the Incas, and we’ve lost whatever they themselves said about it. In other countries where I’ve traveled, like Israel and Turkey, there are more texts to rely on for interpreting a ruin and the role it once played. 

Weisberg: Speaking of texts and interpretation: I subbed for you on the Gabfest last week but couldn’t channel your views on the big Supreme Court case. What’s your read on Hobby Lobby?

Bazelon: Ha! Great segue! Yes, this is the case in which the government wants the justices to rule that Hobby Lobby has to abide by the rules in Obamacare that require employers to cover birth control for their employees. The craft store, on the other hand, wants an exemption from the contraception mandate because its owners object to forms of birth control they say actually cause abortion, i.e., the IUD and the morning-after pill. 

Problem for the government at argument: A majority of the justices seemed to think it was important, in deciding whether Hobby Lobby has its own right to freedom of religion, that the company is privately owned rather than publicly traded. Blergh. It would be one thing if we were talking about a sole proprietorship. But this is a company with 13,000 workers! The whole point of incorporating as a for-profit is that the corporate entity is separate from the owners for most forms of liability.

Problem for Hobby Lobby at argument: A different majority of the justices seemed to think it was important that Hobby Lobby’s supposed right to exercise its religious beliefs clashes with the rights of the women who work in its stores to get their birth control covered. Yes it does, and yes that matters. In previous cases, the Supreme Court has been reluctant to promote one person or entity’s religious rights to the point of imposing significant costs on someone else. I am all for this kind of balancing, as I’ve been hashing out in a debate with Ross Douthat. If the court moves away from the middle ground in this case, I’m worried that freedom of religion challenges—by other companies—are going to turn into a hole through reasonable laws big enough to drive a missionary bus through.

One bone to pick with you, post Gabfest: You said that in the scheme of Obamacare, the impact of this case will be insignificant, because Hobby Lobby is only trying to get out of covering four out of 21 forms of birth control. But if this company gets to pick and choose from the list, then the next company will pick and choose something else. Today, the IUD. Tomorrow, an objection to blood transfusions, or going to see a psychiatrist. Even if the Supreme Court comes up with some narrow ruling that somehow restricts itself to contraception (in other words, is all about sex), it will set a terrible precedent for scientifically sound regulations, in Obamacare and beyond.

Weisberg: Emily, I don’t think I was clear in what I was trying to say on the Gabfest. My point was that unlike the 2012 case in which Roberts ruled in favor of the individual mandate, nothing in the Hobby Lobby case goes to the viability of the ACA—and in that sense, Roberts can’t roll back what he did that so infuriated people on the right. I agree with you that we don’t want companies picking and choosing which health care benefits they might object to on some dubious medico-religious theory (such as that IUDs are abortion rather than contraception). But I don’t think even a broad ruling in favor of Hobby Lobby would undermine Obamacare, the way throwing out the individual mandate would have. That’s all that I was trying to say—not that the larger issue isn’t important.

I’ve been following your interesting debate with Ross Douthat. Do you think private companies bigger than sole proprietorships should have rights of religious free expression? In other words, should there be any protections for Jewish or Catholic or Mormon for-profits, as opposed to nonprofits?

Bazelon: Aha, got it, thank you for clarifying. And yes, you’re right—this case isn’t about the validity of Obamacare. That, at least, the court is done with.

Your question about private companies is exactly what I’m wrestling with today, in thinking through how to respond to Ross. I can see an argument for granting religious rights to sole proprietorships, which are basically one-person companies. Beyond that, I’m skeptical. As Justice Kagan asked at argument:

How does a corporation exercise religion? I mean, I know how it speaks and we have, according to our jurisprudence, 200 years of corporations speaking in its own interests. But where are the cases that show that a corporation exercises religion?

In response, the lawyer for Hobby Lobby, Paul Clement, brought up two cases involving religious nonprofit groups and said “I’m not sure that you can so easily divide the two.” Well, of course you can. The IRS does that for us. If you want the mission of the entity you’re creating to be religious, then you ask the IRS for nonprofit status. Why isn’t that the clean answer, with a possible exception for sole proprietors—what do you think?

Weisberg: I’m close to an absolutist on First Amendment issues. But I think that under the Constitution and our political tradition, rights of free expression and religion belong to individuals, not to commercial entities. I think people should have those rights within corporations, but I don’t think for-profit businesses themselves deserve much, if any, protection. Do whatever the hell you want as an individual, a family, church, private association, or nonprofit. But government retains the power to regulate commercial speech for a lot of good and necessary reasons.  

So I’d repeal the Citizens United decision and wouldn’t carve out any religious exemption at all for Hobby Lobby. You don’t have to provide health insurance to your employees, but if you provide it, it has to include the mandated forms of contraception as well as other treatments, end of story. You can’t discriminate against members of other religions in hiring and you can’t limit their benefits based on your personal views. What’s the problem with that? Because it’s a bright line, it has the advantage of simplicity as well. 

Last question: What do you think the court will actually do in this case? 

Bazelon: I think the court will disappoint you and me and everyone else who thinks it’s a bad idea to give corporations religious rights. I was just reading the transcript, and Justice Kennedy, the obvious swing vote, didn’t really address that question directly. But he’s the guy who gave corporations freedom of speech rights in Citizen United, and I don’t have much faith that he’ll stop there.

In one promising moment, Kennedy did recognize that to rule for Hobby Lobby would be to put its female employees “in a disadvantageous position” because they “may not agree with these religious beliefs of the employer.” That’s one of the strongest points in favor of requiring businesses to cover birth control if they provide health insurance. But just as my heart was fluttering, I read another bit in which Kennedy got caught up in the fact that the Department of Health and Human Services has decided to exempt churches and nonprofit religious groups from the contraception mandate. If HHS is willing to give these groups a pass, he said, “then it must have been because the health care coverage was not that important.” Oh dear. 

And then Paul Clement, excellent lawyer that he is, picked up this thread by saying that “the easiest way to rule against the government in this case” is just to say, what’s at stake here isn’t really access to birth control. It’s just who pays for it. “The government paying or a third-party insurer paying is a perfectly good least-restrictive alternative,” Clement said. As in, if the government is willing to do that for the employees of churches, then why not for Hobby Lobby’s workers, too?