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ObamaCare and Little Sisters of the Poor: Legal Implications of the Hobby Lobby Case

Last month, the Supreme Court ruled [1] in the case of Burwell v. Hobby Lobby that it is unlawful under the Religious Freedom Restoration Act (RFRA) for Obamacare’s HHS mandate to require a for-profit, closely-held corporation to provide insurance coverage for abortifacients in violation of its owners’ religious beliefs.  Does this decision open the door to endless litigation?  Not likely.

The Hobby Lobby ruling is limited [2] to for-profit, closely-held corporations.  It does not reach large, publicly-held corporations, and does not open the door to litigation brought by such companies.  Furthermore, determinations of whether or not an organization is “closely-held” will be resolved by state corporate law, not litigation.

But What About The Little Sisters Of The Poor?

The pending lawsuits [3] against Obamacare’s HHS mandate brought by non-profit, faith-based organizations will proceed.

Plaintiffs such as Little Sisters of the Poor, University of Notre Dame, the Diocese of Arlington and other Catholic hospitals, schools, dioceses, and social service organizations are not for-profit, closely-held corporations like Hobby Lobby, so the Supreme Court ruling does not apply to them.  Furthermore, the existing “religious employer exception,” issued in August 2011, does not protect the religious freedom of these organizations because they do not fall within the HHS Mandate’s unprecedentedly-narrow legal definition of “religious employer,” which requires employers to meet the following criteria:

      (1)    The inculcation of religious values is the purpose of the organization;
      (2)    The organization primarily employs persons who share the religious tenets of the
      (3)    The organization serves primarily persons who share the religious tenets of the
               organization; and
      (4)    The organization is a non-profit organization.

Because the primary purpose of Catholic and other non-profit charities, social services (e.g., homeless shelters, adoption agencies, relief services, etc.), hospitals and health-care institutions, schools, universities, dioceses, radio and TV stations, and other faith-based institutions is to educate, serve, or help persons of all faiths, not just their own, they fail to meet these criteria.  Realistically, only houses of worship can possibly meet all of four of them.

To stem mounting criticism, the HHS proposed to supposedly broaden the definition of “religious employer” by dropping the first three criteria above and leaving only the requirement that the institution be non-profit.  This was a step in the right direction.  However, it came at a cost.  Along with the exemption, came the requirement that all exempted companies be automatically enrolled in a separate “rider” plan to be provided by the insurance company itself.  The abortion-inducing drug, Ella, sterilization, and contraceptives would be covered under this rider.  There is no opt-out from this rider, for either the employer or employee.

This “accommodation” [4] supposedly shifts the burden from the employer to the insurance company.  It did not take very long, however, to conclude that this approach would not solve the issue.  As the saying goes, there is no free lunch.  Insurance companies will not provide this rider for free.  Premiums will increase, and those premiums will be paid by the employer.  Ultimately, employers are still forced by the government to pay for abortion drugs, sterilization, and contraceptives against their deeply-held religious beliefs.  As described in the Wall Street Journal, religious institutions “will still pay for birth control, even if it is nominally carried by a third-party corporation.”

Despite Obama’s reassurances over the last year to find an acceptable solution to these violations of religious freedom, the half-measures offered by his administration have only reaffirmed its stance against religious freedom.

Claims brought by Little Sisters of the Poor and other similar plaintiffs against Obamacare’s HHS Mandate include: violations of the RFRA, violations of the Free Speech, Free Exercise and Establishment Clauses of the First Amendment, and violations of the Weldon Amendment; and they will continue.  The Hobby Lobby decision bodes well for a future decision in favor of such organizations.

One More Thing…

The Hobby Lobby ruling brings to light another potential threat posed by the Obama Administration.  The Supreme Court wrote that, according to the Obama Administration’s line of reasoning, it is permissible for “the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question – for instance, third trimester abortions or assisted suicide.”  If this were the case, the Supreme Court stated that the owners of many small, family businesses would object and the government “would effectively exclude these people from full participation in the economic life of the Nation.”  Such exclusion is inconsistent with the religious freedom endowed by our Creator and secured by our Constitution and thus the Court rightly affirmed that the government has no power to make such demands.

The Hobby Lobby ruling is limited to for-profit, closely-held corporations. And since, as silly as it sounds, the Little Sisters don’t meet the government’s definition of “religious employer” their case will proceed…