Ironically, I was in the land of religion, Vatican City, when the Supreme Court announced its decision in the Hobby Lobby case. As most of you already know, the Court ruled that federal law allows a closely-owned non-profit business a right to refuse for religious reasons to provide insurance coverage for birth control methods for their employees. In so holding, first the Court ruled that a non-profit is a “person” for the purposes of federal law. Then it held that the ACA’s requirement of providing insurance coverage for birth control substantially burdens Hobby Lobby’s religious beliefs because of the significant financial penalties imposed by the ACA for failure to do so. Finally, it held that there were less restrictive alternatives to achieve the government’s legitimate interest in providing health care to women. This last part is where the reasoning gets really important; the Court specifically pointed out the less restrictive alternative of completing a Form 700, an accommodation already in place for religious employers. As the Court explained, “[u]nder that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. ” Then the organization’s insurance issuer must pay for the birth control services itself. [Please note that I have heard an earful on this rule from my husband, who works in health insurance.]
If you can stomach the Court’s conclusion that a for-profit company has religious beliefs (I can’t), the majority’s logic sounds fairly sound. Employees won’t be hurt, because the objecting companies will just notify their insurance companies, who will then pay for birth control services so the objecting companies don’t have to. Then, within hours, the Court confused everyone by granting an injunction to Wheaton College, a religious college that objected to Form 700. Basically, Wheaton is arguing that the act of completing Form 770 substantially burdens its religious beliefs because it puts them in the position of directly facilitating the provision of birth control. At the risk of offending those who hold religious beliefs similar to Wheaton College, give me a break. Legally, it is important to remember that all the Supreme Court did was grant an injunction; this means that Wheaton need not comply with the ACA requirement while its case is pending.
On the other hand, all the Court did was launch a firestorm, starting with a scathing dissent by the three women on the Court (the gender divide is pitiful, by the way). The dissent accuses the majority of the Court of contradicting itself — if the accommodation of Form 700 is a less restrictive alternative for Hobby Lobby, how can it substantially burden Wheaton College’s religious beliefs? The dissent also argues that the result will be denial of health care services to women, services that Congress has decided are statutorily required.
If your head hurts, you are not alone. The law here is complicated, and religion is so personal. So let me stick to ethics; it seems this mess lends great support to a libertarian view, which is that employers (and the government) should stay out of matters that implicate our most closely held values (religious, health-related, women’s rights, you name it). We are in this mess because long ago the government decided that health insurance should be provided through employers. Try to step away from that history, and all the economics and business arguments related to our health care market. Viewing the issue through only an ethics lens, it seems fraught with trouble to have our employers paying for or administrating our access to health care. Unfortunately we are too far gone to back away, and so now, depending on your view, either the Court or the ACA is stuck trying to clean up the mess.
The market may limit the impact of Hobby Lobby – we can all vote with our feet and choose our employers wisely. But there has already been a troubling ripple effect of the decision. As the New York Times explains today, several faith-based organizations are seeking an exemption from a planned Executive Order that prohibits discrimination on the basis of sexual orientation by companies doing business with the federal government. I will never understand why religion is a license to discriminate.
On the flip side, gay rights organizations have withdrawn support for pending legislative that prohibits discrimination on the basis of sexual orientation (by all employers, not just those that are government contractors). As I have discussed in class, it has taken years and dozens of failed bills to get to the point where the Senate approved of the anti-discrimination law. The bill, however, includes an exemption for religious organizations. Given the response to Hobby Lobby, gay rights organizations fear that the law will amount to nothing, and have therefore withdrawn support. These actions were foretold by dissenters in Hobby Lobby, but what is really amazing is how quickly it all happened.
