US Supreme Court: For-profit companies can have a religious exemption to providing insurance that includes contraceptives

Posted by Gabriel Armas-Cardona on July 2, 2014

In a decision released on Monday, the Supreme Court of the United States released its judgment in Burwell v. Hobby Lobby Stores. It is a controversial opinion that allows closely held for-profit corporations a religious exemption to providing health insurance that includes certain contraceptives that can be viewed as causing an abortion.

The opinion is divided on ideological grounds with the five more conservative justices in the majority and the four more liberal in the dissent. Notably, all three women in the Court were in the dissent.

The majority and dissent take very different perspectives in the opinion, with each analysis starting from a differing view of the Religious Freedom Restoration Act of 1993 (RFRA). The majority says that the Act was intended to “provide very broad protection for religious liberty” while the dissent views the Act as returning the law to that prior to the 1990 case of Employment Division v. Smith. With a strong view of the purpose of the RFRA, the majority was willing to find that for-profit corporations qualified as people whose expression of religion cannot be substantially burdened and that the contraceptive mandate was a substantial burden on the petitioners. The dissent views the judgment as one of “startling breadth,” while the majority says, without explanation, that the judgment “is concerned solely with the contraceptive mandate.”

The United States has no recognized right to health, and thus there was no discussion as to whether the women’s right to access contraceptives trumps over a for-profit corporation’s religious freedom. The dissent argued that any religious exemption “must not significantly impinge on the interests of third parties,” but the majority dismissed the concern in footnote 37 and said that the less restrictive means they suggest will result in no impact on third parties.

One of the less restrictive means that the court suggests is for the government to pay for the contraceptives in question. The majority cites the RFRA’s sister act, the Religious Land Use and Institutionalized Persons Act of 2000, which states that “[T]his chapter may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). It’s unusual for US courts to consider imposing a positive obligation on the government, but the majority was willing to do so here because the Acts acknowledge the possibility and because the costs would be a small fraction of the total costs of the ACA. The dissent criticizes this argument by pointing out one of the classic justiciability questions for positive obligations: where do they end? Especially with the majority’s unclear limitations on the breadth of the opinion, it’s uncertain whether an employer with a sincerely held religious objection to “health coverage of vaccines, or paying the minimum wage … or according women equal pay for substantially similar work” would have to be accommodated by having the government pay the difference.

In another case released the week prior that impacts women’s reproductive rights, McCullen v. Coakley, the Court struck down a law that imposed a 35-foot (10.6 meter) buffer zone around clinics that perform abortions saying that the law violates freedom of speech. This decision was unanimous, demonstrating the importance of freedom of speech in the United States, and because the court acknowledged that the interests in the law were legitimate and that there are alternative means to fulfill them.

[Update: July 4, 2014]

The Supreme Court of the United States has granted an injunction to Wheaton, a Christian college, to allow it notify the government that it objects to providing coverage for contraceptives. The order is only one page long, but Sotomayor, joined by Ginsburg and Kagan, wrote a 15-page dissent to the order saying that granting the injunction “undermines confidence in this institution” and that “[a]fter today, it is clear that [women’s] access to contraception is by no means guaranteed given the administrative complexities the court has now imposed upon.”

Gabriel Armas-Cardona is a Legal Officer at Lawyers Collective.