Burwell v. Hobby Lobby Stores, Inc.

The Patient Protection and Affordable Care Act of 2010 (ACA) imposed an obligation on certain employers to provide “‘preventive care and screenings’ for women without ‘any cost sharing requirements.’” Under that law, the Department of Health and Human Services (HHS) imposed a regulation that the preventive care includes 20 types of contraceptives. Four of those types can be viewed as abortifacients as they can prevent an “already fertilized egg from developing any further by inhibiting its attachment to the uterus.”

The Religious Freedom Restoration Act of 1993 (RFRA) restricts the government’s ability to “substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”

The owners of three closely held for-profit corporations that believe abortion is a violation of their religion petitioned for a religious exemption to the requirement that they provide health insurance that includes the four types of abortifacients.

One corporation petitioned and was dismissed by the Third Circuit. The Third Circuit said that a for-profit corporation could not “engage in religious exercise” under the RFRA or the First Amendment and that the mandate imposed no personal obligation on the owners.

Two of the corporations petitioned within the Tenth Circuit, which granted them a preliminary injunction as it saw the corporations as persons under RFRA and that the corporations had established a likelihood of success on the merits of their claim. This case is an appeal from the Tenth Circuit granting the preliminary injunction to the corporations.

The Court in a narrow majority held that closely held for-profit corporations can receive a religious exemption under the RFRA from the HHS regulation that requires employers to provide health insurance that includes the four abortifacients.

The Court found that RFRA applies to corporations because Congress had intended to provide a very broad protection of religious liberty and because the term “person” typical includes corporations. The purpose of extending the right of religious freedom to corporations is to protect the people associated with the corporation.

The HHS regulation substantially burdens the exercise of religion of closely held corporations as it requires the owners of the closely held corporations “to engage in conduct that seriously violates their sincere religious belief….” The Court found that the connection wasn’t too attenuated as the RFRA protects the “ability to conduct business in accordance with [one’s] religious beliefs.”

While the Court assumes that HHS’s goal is a compelling government interest, the HHS fails to show that its contraceptive requirement is the least restrictive means available. In particular, the Court provides two alternatives: the government could pay for the contraceptives directly or the government could grant religious exemptions for for-profit corporations as it does for religious non-profit organizations.

Finally the Court specifically narrowed its decision to only consider the contraceptive mandate and should not be read to require that any religious objection can trump any insurance-coverage mandate, e.g. vaccines or blood transfusions.

The four-judge dissent takes a dramatically different view, disagreeing with the majority on almost every step. The core of the difference is that the dissent views Congress as interested in promoting women’s health, as shown through the passage of the Women’s Health Amendment to the ACA, and that the RFRA was only meant to restore a lower level of protection of religious freedom.

According to the dissent, the regulation does not substantially burden the exercise of religion as it imposes an obligation on the corporations only to direct money to a general fund, that the provision of contraceptives is a compelling government interest and that the government’s program is the least restrictive mean to ensure the provision as the majority’s proposed solutions leave open whether additional burdens will be placed on women or the extent of religious exemptions under RFRA.  Finally, the dissent also states that for-profit corporations were not intended to be included under the RFRA and cannot bring this claim, but this view was shared by only two judges.

“Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings.  A corporation is simply a form of organization used by human beings to achieve desired ends. … When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company.  Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being.  And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.” (P. 18)

“As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges, see Brief for HHS in No. 13–354, at 9, n. 4, may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.” (P. 32)

“Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.” (P. 2)

“The most straightforward way of [furthering the government interest] would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections. This would certainly be less restrictive of the plaintiffs’ religious liberty, and HHS has not shown, see §2000bb–1(b)(2), that this is not a viable alternative.” (P. 41)

“HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. See supra, at 9–10, and nn. 8–9. Under that accommodation, the organization can self certify that it opposes providing coverage for particular contraceptive services.” (p. 43)