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Hobby Lobby: What It Said and What It Didn’t Say About the Legality of Contraception

On June 30, the Supreme Court handed down a landmark decision [1] in favor of religious freedom in the case of Burwell v. Hobby Lobby.  To protect the fundamental right to religious freedom of the Green family (the exclusive owners of Hobby Lobby), the Supreme Court held that it is illegal under the Religious Freedom Restoration Act (RFRA) to force a closely-held corporation to pay for insurance coverage for abortion-inducing drugs when such drugs violate the religious beliefs of the corporation’s owners.

Hillary Clinton and Nancy Pelosi have publicly criticized the decision as patronizing to women, issuing false and largely-misinformed statements on the effect of the ruling, even questioning whether or not contraception will remain legal.

The ruling, however, does not in any way alter or restrict the “right” to contraception as set forth in Griswold v. Connecticut.  Nancy Pelosi’s invidious statement at the Capitol that the Hobby Lobby decision amounts to “five guys determining…what contraceptions are legal or not” is absolutely incorrect and grossly misleading. Contraception is still as legal as ever.  The legality of obtaining and using contraception, and the ability of women to choose and purchase any form of contraception at will, has not been changed and remains wholly intact.

Pelosi incorrectly stated that the Hobby Lobby decision would prohibit a woman from using a diaphragm.  She asserted that the Court has no business getting “down to the specifics of whether a woman should use a diaphragm.”  However, the contraceptives involved were abortion-inducing drugs, not diaphragms.  Hobby Lobby continues to provide full coverage for 16 of the 20 FDA-approved contraceptives.  It objected to only four.

Moreover, Hillary Clinton stated: “It is very troubling that a sales clerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care plan because her employer doesn’t think she should be using contraception.”

Clinton is wrong on several fronts.  First, relative to other healthcare costs (remembering, of course, that contraception is NOT healthcare), contraception is very inexpensive.   Second, women employees at Hobby Lobby are still as free as ever to choose to use contraception.  The Green family simply will not pay for certain abortion-inducing drugs because they believe that doing so would make them personally complicit in abortion.  Third, Hobby Lobby will continue to fully cover 16 of the 20 FDA-approved contraceptives for their employees.  Incidents of people sprinkling condoms around Hobby Lobby stores as an act of opposition to the Green family reflect ignorance of the facts of the case and the very limited claim brought by the family.

Case Background

The case joined the causes of three family businesses organized as “closely-held corporations,” meaning that over 50% of the company is owned by five or fewer individuals, usually members of the family who started the business.  The Hobby Lobby and Mandel corporations are owned exclusively by the Green family, and the Conestoga Wood Specialties corporation is owned exclusively by the Hahn family.

Under Obamacare’s HHS Contraceptive Mandate, Hobby Lobby is required to pay employee health insurance coverage for all forms of FDA-approved contraception.  This includes Plan B, Ella, the morning-after pill, and the week-after pill.  These drugs also function as abortifacients by prohibiting a fertilized egg from implanting, and have been inappropriately mislabeled [2] by the FDA as contraceptives.

The HHS mandate forces the owners of Hobby Lobby to either facilitate abortion in violation of their religious beliefs, or face up to $475M a year in fines, effectively putting them out of business.  The mandate leaves them little choice – pay for abortion or close their business.

The Supreme Court’s Ruling
The Court ruled that it is unlawful under RFRA for Obamacare’s HHS mandate to require a for-profit, closely-held corporation to provide insurance coverage for abortifacients in violation of the owners’ religious beliefs.

The Supreme Court held that, because of the size and nature of closely-held corporations, protecting the religious freedom of Hobby Lobby and similar companies “protects the religious freedom of the humans who own and control those companies.”

The Religious Freedom Restoration Act [3] is a federal law signed by President Clinton in 1993 with three components: (1) It prohibits the government from placing a “substantial burden” on the exercise of religious freedom unless (2) such burden is the “least restrictive means possible” and (3) it achieves a “compelling government interest.”

Directly applying this law, the Supreme Court found that the debilitating fines constituted a “substantial burden” on Hobby Lobby’s free exercise of religion and that the government has other “less restrictive means” available to provide the four abortion-inducing drugs in question to women – namely, the government can pay for them, or it can simply extend to Hobby Lobby the “religious employer accommodation [4].”  (As a for-profit institution, the religious employer accommodation did not apply to Hobby Lobby.)

Considering these readily-available options in light of the severe burden on religious freedom, the Court ruled in favor of religious freedom.

Notably, the Court did not rule on whether the government has a “compelling interest” in placing the substantial burden on Hobby Lobby.  This issue, as well as the effectiveness [5] of the religious employer accommodation itself, is under question in other pending litigation.

The Obama Administration argued that Americans who organize as closely-held corporations forfeit their right to religious freedom.  The Court rejected this argument, holding that Americans do not lose their right to religious freedom when they decide to start a family business.

The Dissent

It is significant to note that the dissent by Justices Ginsberg, Breyer, Kagan and Sotomayor is based primarily on their objection to the RFRA itself, and not the specific claims brought by Hobby Lobby.  However, the RFRA was intentionally designed by Congress to provide broad protection for religious freedom in accordance with the importance of this fundamental right.  The balance of powers between the judicial system and Congress is at work in this instance.  Rather than re-writing the law as it might see fit, Justice Alito wrote: “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

Hillary Clinton and Nancy Pelosi have publicly criticized the Hobby Lobby decision as patronizing to women, issuing false and largely-misinformed statements on the effect of the ruling, even questioning whether or not contraception will remain legal. Let’s focus on the facts…