Should Religion Have Won in Burwell v. Hobby Lobby?

The CEOs of the for- profit corporation, Hobby Lobby, objected to paying for certain contraceptives mandated by the Affordable Care Act because they believed the contraceptives caused early abortions, and violated their Christian beliefs.  The case made it all the way to the Supreme Court of the United States, and yielded a 5-4 decision in favor of Hobby Lobby.  In my analysis, I break down how religion “won” in the Burwell v. Hobby Lobby case.   I provide an overview of the case and how it made it to the Supreme Court, what precedences were used in the ruling, then end with some discussion topics and my thoughts.

            In 2010, the Affordable Care Act was passed, and sparked a myriad of concerns and questions.  Can I keep my current insurance?  Can the federal government mandate every state to expand Medicaid? How long can I stay on my parent’s insurance?  The list goes on.  When the ACA was passed, it required that certain employers (namely for- profit organizations) had to offer their employees group health plans that provided women with preventive care and screenings without any cost- sharing requirement (Cornell University Law School, 2014).  The Department of Health and Human Services found 20 contraceptive methods that would fulfill this requirement, four of which would prevent an already fertilized egg from attaching to the uterus. 

The CEO of Hobby Lobby (a for- profit corporation), David Green (featured to the left), wondered if he was required to provide his employees with these four contraceptives, which he and his family believed cause early abortions and violated their Christian beliefs.  Those that were exempt from providing these contraceptives were religious employers (churches) and religious nonprofit organizations.  However, exemptions did not extend to corporations or for- profit organizations.  The Green family claimed they were devout Christians, who believe that life begins at conception, and should be exempt form this mandate because the four contraceptives infringed on their religious beliefs and violated their religious commitments.  This unearthed a new constitutional question.  Can for- profit organizations and corporations exercise religion, and be protected under the Religious Freedom Restoration Act?  The family’s case, Burwell v. Hobby Lobby, went all the way to the Supreme Court of the United States, and resulted in a 5-4 decision in favor of Hobby Lobby.  The Supreme Court ruled that for- profit corporations were “persons” under the law, and were exempt from the contraceptive mandate in order to protect the religious beliefs of this corporate person (Biema, 2014).  The issue in this case was not whether these highly debatable beliefs are valid, but whether the circumstances under which a religious objection may trump a federal law.  My goal is to determine exactly why religion won, and the mandate lost.  I will analyze both sides of the case, and form my opinion after hearing all the evidence.  To begin, I will explain how the case got to the Supreme Court.  After that, I will examine what key pieces of legislation, case law, and precedent were key in Hobby Lobby’s success.  Then I will end with a few discussion topics.

            Burwell v. Hobby Lobby began when owners of a few for- profit corporations individually sued the Department of Health and Human Services and other federal officials and agencies under the RFRA and the Free Exercise Clause of the First Amendment.  The circuit courts; though, were split on the issue.  The Hahns’ company, Conestoga Wood Specialties, was denied a preliminary injunction, and the Third Circuit Court of Appeals affirmed saying that a for- profit corporation could not “engage in religious exercise” under the RFRA or the First Amendment.  The Greens’ companies, Hobby Lobby and Mardel, were also denied a preliminary injunction, but the Tenth Circuit reversed saying the Greens’ businesses were “persons” under the RFRA, and the HHS regulations imposing the contraceptives mandate violated the RFRA (Cornell University Law School, 2014).  The Tenth Circuit Court of Appeals was then issued a writ of certiorari from the Supreme Court of the United States.

            When ruling on this case, the justices mainly consulted the Religious Freedom Restoration Act of 1993, Employment Division v. Smith, the Free Exercise Clause of the First Amendment, and the Dictionary Act.  The First Amendment of the United States Constitution contains the Free Exercise Clause that states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  The Free Exercise Clause protects religious beliefs and exercise, and prohibits the government from regulating or coercing action contrary to those beliefs.  In 1990, the Supreme Court overruled the “compelling interest” test with the ruling in Employment Division v. Smith. The ruling in Smith made it so “a valid and neutral law of general applicability” is sufficiently constitutional whether it burdens a sincere religious belief or not.  After the Smith decision, Congress enacted the RFRA in 1993, which restored the compelling interest test by stating:

            Government shall not substantially burden a person’s exercise of religion

even if the burden results from a rule of general applicability

. .. [unless] 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. (Limes, 2014)

This is important because if a plaintiff proves the government substantially burdens a person’s sincere religious beliefs or exercises, the burden of proof is shifted to the government to establish that its action furthers a compelling government interest using the least restrictive means.  In addition, the RFRA does not define the word “person” (Limes, 2014).  Due to this, the justices turned to the Dictionary Act.  The Dictionary Act was enacted in 1871 to instruct the courts to apply to all federal statutes definition of certain common words and fundamental rules of grammatical construction.  The definition of a “person” or “whoever” in the Dictionary Act includes: “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals” (Barnet, 2014).   This definition played a huge role in Hobby Lobby’s success.   The Constitution protects a person’s right to exercise his or her religion.  Therefore, since a corporation is considered a person, Hobby Lobby has a constitutional right to religious free exercise.

            In looking at the justices’ opinions, there were several points made by each justice.  However, I think the most interesting debate was over whether the HHS mandate substantially burdened the Greens’ exercise of religion.  Alito believes that the mandate does, and Ginsberg disagrees.  Alito said: 

The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would. (Justia, 2015)

In her dissent, Ginsberg said:

I would conclude that the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial. The requirement carries no command that Hobby Lobby or Conestoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under comprehensive health plans. Those plans, in order to comply with the ACA, see supra, at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. (Justia, 2015)

In closing, I wish to raise some questions and discussion topics. The first discussion topic is on the ruling.  The ruling was a 5-4 decision in which all three female justices ruled for the workers, and the all five Catholic male justices ruled for the corporation.  Is this a concern?  Do you think being Catholic influenced the five male justices? (Pollitt, 2014)

Second, the Kaiser Health Tracking Poll, released in April 2014, found that the public supported the contraception mandate by a 2- to- 1 margin (61% support, 32% oppose) (Markoe and Grossman, 2014).  Kaiser also asked: “Should a for- profit business owner with religious objections to birth control be subject to the requirement?”  Once again, 55% said yes, “even if it violates their owners’ personal religious beliefs” (Grossman, 2014).  The Public Religion Research Institute did a similar survey that found 55% of Americans agreed: “employers should be required to provide their employees with health care plans that cover contraception and birth control at no cost.” The responses in the PRRI survey were divided by religious lines and gender.  Of all the respondents, 62% of women favored the requirement while only 47% of men favored the requirement; 58% of Catholics favored the requirement compared to only 38% evangelical Protestants who favored the requirement.  Gallup did a study in May 2012 that reported 89% of all Americans, including 82% of Catholics, said: “birth control is morally acceptable” (Grossman, 2014).  Should the justices have taken the majority of the public’s view into consideration with this decision?

Third, the CEO’s of Hobby Lobby won their case on the basis of religious exercise by saying these contraceptives went against their religion morals.  What if the CEOs had been atheists, and held the same view that these contraceptives cause abortions and are against their morals?  Should atheists have to pay for these contraceptives despite their morals?  They hold the same views and values.  Why should atheists have to pay for these four contraceptives too? Could this be seen as religion being a way to get out of paying certain things to save/make money? (Granados, 2014)

Finally, of the 20 preventative contraceptives required in the federal mandate, the Green family has no moral objection to 16 of them.  Hobby Lobby will still cover: male condoms, female condoms, diaphragms with spermicide, sponges with spermicide, cervical caps with spermicide, spermicide alone, birth- control pills with estrogen and progestin, birth- control pills with progestin alone, birth control pills, contraceptive patches, contraceptive rings, progestin injections, implantable rods, vasectomies, female sterilization surgeries, and female sterilization implants (Clytemnestra, 2014).  The 4 contraceptives they refuse to cover are: Plan B (“The Morning After Pill”), Ella (another form of emergency contraception), Copper Intra- Uterine Device, and IUD with progestin (Clytemnestra, 2014).  The evangelical owners drew the line at covering these devices and drugs because they block implantation of a fertilized egg in the uterus.  Therefore, preventing a pregnancy.  Once again, the Green family refuses to provide or pay for these four life- threatening drugs and devices because doing so violates their deeply held religious belief that life begins at the moment of conception (when an egg is fertilized) (Grossman, 2014).  Plan B is a backup plan that helps prevent pregnancy from happening after unprotected sex or birth control failure.  Plan B is not RU-486 (the abortion pill), and won’t work if someone is already pregnant.   The pill mainly works by stopping the release of an egg from the ovary.  However, Plan B has been known to on occasion to prevent fertilization of an egg and prevent implantation to the uterus (Healthcare Professionals, 2014).  Ella (ulipristal) is an emergency contraceptive that works by stopping or delaying the release of an egg from an ovary.  This drug may also make it harder for a fertilized egg to attach to the uterus (Drugs.com, 2015).  Copper Intra- Uterine Device and IUD

with progestin are small T- shaped plastic devices that are wrapped in copper or contain hormones.  The copper and other hormones are toxic to sperm.  The copper IUD’s makes it so the uterus and fallopian tubes produce fluid that kills sperm (Healthwise Staff, 2013).  IUD with progestin works mainly by affecting the way sperm move so they can’t join with an egg.  For some women, this IUD may prevent an egg from leaving the ovary, and prevent pregnancy by thickening the cervical mucus.  This mucus blocks sperm and keeps it from joining with an egg (Planned Parenthood, 2014).  So while these drugs and devices can affect an embryo from attaching to the uterine wall, their main purpose is to prevent the egg and sperm from coming in contact with each other.  Furthermore, as I stated earlier, the Greens have no objection to the other 16 forms of contraceptives, including birth control pills.  But, if you look at what birth control pills do, they also can prevent pregnancy by changing the lining of the womb so it is unlikely the fertilized egg will be implanted (WebMD, 2015).  Which is what these four devices and drugs do!  So why did Hobby Lobby focus on these four drugs and devices?  Were the Greens and the justices uneducated about the drugs?  I wonder why they specifically chose those four devices and drugs.

All in all, should religion have won in the Burwell v. Hobby Lobby case?  I am hesitant to say that it should have.  I understand the precedents used in this case and how they were used, but I still do not agree with the outcome.  The slightest change in a current precedent or definition could have easily altered this ruling.  For example, what if corporations weren’t seen as people, or the compelling interest test not been added to the RFRA?  This could have had a profound impact on the case, and could have potentially flipped the verdict the other way.  I do also find this verdict to be somewhat politicalized.  The fact that all five Catholic male justices voted for the corporation, and took a somewhat pro- life stance is a little more than coincidental to me.  In addition, had the Greens been atheists and held this belief that it is wrong to provide these four contraceptives because they found it morally wrong, I don’t think the case would have made it to the Supreme Court.   I also don’t think the Greens fully understood what these drugs and devices did.  They work virtually the same as the other contraceptives they will continue to cover.  Furthermore, I agree with Ginsberg that there was not enough “substantial burden” in this case to allow Hobby Lobby an exemption.  Seriously, how does providing contraceptives affect you selling crafts? Ginsberg also points out that there is no case law to support the notion that free exercise rights pertain to for-profit corporations, and until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA.  In the end, while I have no doubt the Greens are religious and devout, I just feel as though religion was used to get out of covering these drugs and devices, and that for- profit corporations like Hobby Lobby should not be exempt from this mandate.