There’s an old saying that there are a few topics that should be avoided at every dinner party: money, sex, religion, and politics. Given that we’re at a causal breakfast table, I’ll break that rule. And it’s a good thing, because the facts behind Burwell v. Hobby Lobby are a gnarly combination of all four dinner-party faux pas.
Hobby Lobby is the latest chapter in the endless saga that is federal litigation over the Affordable Care Act. While the big-ticket case two years ago this week concerned the ACA’s treatment of private individuals and state governments, the ACA also imposes requirements on private employers. The facts of Hobby Lobby are at this point well-known: Christian families that own and operate private businesses sued, under both the First Amendment and the Religious Freedom Restoration Act, a federal statute protecting religious liberty, arguing that the federal contraception mandate violates their religious liberty.
As Eric has noted, this morning the court held in favor of the companies and against the government. It did so on purely statutory grounds, without reaching the First Amendment questions. The court found that RFRA’s definition of “persons” includes privately held for-profit companies, that the contraception mandate substantially burdens those companies’ free exercise of religion, and that the contraception mandate is not the government’s least restrictive means of guaranteeing cost-free access to birth control.
There’s a lot to say about the court’s decision, but the biggest thing that stands out is the disagreement between the majority and dissenting justices about its scope. Justice Ginsburg opens her dissent by characterizing the decision as one of “startling breadth,” while Justice Kennedy, concurring, expressly rejects this view, arguing that the opinion “does not have the breadth and sweep ascribed to it by the respectful and powerful dissent.”
Who’s right? The opinions alone don’t hold all the answers, and it may take years until we know the full scope of the decision. Still, we can discern some hints at this early stage.
Justice Kennedy may be right that the decision is not a slippery slope toward allowing exemptions from other medical coverage (such as blood transfusions and vaccines) or toward allowing religious exemptions from anti-discrimination law. The court expressly disavowed these possibilities, arguing that compelling state interests, in public health and equality, respectively, justify denying exemptions in those cases. This argument is vulnerable, however. The majority did not dispute a compelling state interest in Hobby Lobby—it instead struck down the contraception mandate as not narrowly tailored to meet that interest. Simply noting that compelling interests exist in other scenarios only matters in light of how rigorously the court applies the narrow tailoring requirement to those future cases. The majority is also conspicuously silent about LGBT discrimination. It disclaims the possibility that Hobby Lobby could justify racial discrimination but says nothing about LGBT discrimination or even gender discrimination—even though Justice Ginsburg expressly raised that prospect in dissent. If Justice Kennedy is proven correct that Hobby Lobby does not undermine LGBT rights, it will be because of the decision of a future majority, not today’s opinion.
While the court may successfully cabin Hobby Lobby’s impact with respect to other medical procedures and anti-discrimination law, it may be unable to do so with respect to the scope of corporate rights. The court purports to limit its holding to closely held corporations. But Justice Ginsburg argues that its logic extends to corporations of any size and, in a remarkable admission, the majority seems to agree: “No known understanding of the term ‘person’ includes some but not all corporations.” This conclusion invites the next lawsuit, by a non–closely held corporation seeking the same rights that the court read RFRA as having granted to Hobby Lobby. The majority provides no limiting principle in support of cabining its decision to closely held companies.
The proverbial jury is also still out on whether Hobby Lobby can be confined to cases in which the regulatory scheme already makes some exceptions and plaintiffs ask courts to expand their reach. Granting the exception in this case, unlike demanding an exemption to other federal programs, would not disturb an otherwise uniform federal scheme. This is a strong argument, but even if the holding can be so limited, Justice Ginsburg rightly notes that many federal statutes include exemptions of various types. Exemptions are inherent to complex regulatory schemes that attempt to address nuanced problems. If every time the legislature granted a single exception the court took license to expand that exception, Congress would be far more constrained in its ability—constitutionally guaranteed for nearly eight decades—to legislate the economic sphere.
Finally, these issues shouldn’t obscure the obvious question of how Hobby Lobby will affect women’s health. Justice Ginsburg argues that the decision will “deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure.” But the Obama administration will almost certainly pay for those women’s contraceptive coverage itself, so there will likely be no coverage gap as a result of today’s decision. (The same, sadly, cannot be said of the court’s previous ACA ruling.) This “let government pay” option is far from perfect: Justice Ginsburg points out that it would require stretching statutory text and that government health insurance programs are not designed to supplement the coverage of the already insured. Indeed, the court could find, in a future case, that the Department of Health and Human Services doesn’t have the authority to extend the nonprofit exemption to closely held for-profits. Any such holding would be the height of irony: the court giving directions to HHS and then telling it, “Sorry, following those directions is illegal.”
The converse irony is that, if the court permits HHS to extend the nonprofit exemption, the effect of Hobby Lobby will be more Americans receiving more of their health care coverage from the government—making Justice Alito perhaps the world’s least probable enabler of incremental steps toward single-payer insurance!