Sweeping claims about the Burwell vs. Hobby Lobby case are dominating tweets, blog posts and headlines. But what should we take away the ruling?
What was really decided in this court case opinion? Is it a win for religious freedom? Will it deny women access to contraception?
Let’s take a closer look.
Justice Samuel Alito was careful to author a tight, narrow opinion. It is not nearly as sweeping as some articles, tweets and blog posts would lead the reader to believe.
One of the main things affirmed in this court case was the concept of “corporate personhood.” Do corporations have rights?
As Justice Samuel Alito pointed out, this question as already been decided by Congress and was signed into law by a Democratic president. He wrote:
“Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within [the Religious Freedom Restoration Act'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”
Unlike what some websites would like you to believe, it is false to assume that an implication of this decision is that the women employed by Hobby Lobby Stores Inc., Mardel and Conestoga Wood Specialties Corp. will not have access to contraceptives through their employer provided health insurance.
Hobby Lobby has and will continue to provide many contraceptive options to its employees, sixteen options in fact, it will just not provide options it considers abortive in nature such as Plan B, ella, and intrauterine devices.
This fact is not typically mentioned by those who disagree with the case’s outcome. For instance, Reverend Dr. Althea Smith-Withers, who chairs the Religious Coalition for Reproductive Choice, (members include the American Jewish Committee, the Episcopal Church, and the United Church of Christ.) stated in a Times article that “Contraception is a moral good, a fact supported by the various denominations and organizations that make up our coalition. It’s a shame that it may be out of reach for the women who need it the most.”
His statement twists the actual decision. Employees affected by this lawsuit will still have access to contraception. In fact, according to an article in the Fiscal Times, if any of those employees would like to purchase Plan B or One Step, Planned Parenthood says they are available over the counter at many pharmacies for women over the age of 17, and may only cost $10 – $50.
And buying contraception over the counter is not the only option. The majority opinion provided two, less restrictive alternative options. The opinion states: “it seems likely … that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA.” The second alternative offered was that the same accommodations could be offered to these companies that are offered to non-profits.
The next implication of the court case that some would like you to believe is that this will open the door to many other challenges to insurance-coverage mandates; however, Justice Alito wrote the opinion in such a way that that prevents such occurrences. He wrote: “This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g. for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.”
Justice Ruth Bader Ginsburg’s dissent begins with calling the decision one of “startling breadth,” but Justice Anthony Kennedy, while acknowledging her “respectful and powerful dissent,” said that that the opinion “does not have the breadth and sweep ascribed to it.”
The last false implication of this case is that it’s ruling applies to every corporation in America. In truth, it only applies to “closely held” corporations. The decision of the court case immediately begged the question of which other companies can claim this type of exemption, but the outcome for future cases could be decided by which type of company they are, and which state they’re in, as state corporate laws can vary.
According the Wall Street Journal, “The Internal Revenue Service defines a closely held company as a corporation that has more than 50% of the value of its outstanding stock directly or indirectly owned by five or fewer individuals at any time during the last half of the tax year. It also cannot be a personal-service corporation… Jonathan Ingram, director of research for the Foundation for Government Accountability, says he doesn’t expect ‘an enormous amount of confusion on employers’ parts’ about whether they are closely held because those that fall into this category are already subject to different tax and reporting rules.”
It is clear that the court case is one with important implications, but perhaps different implications than those found in headlines and tweets.
Mark Goldfeder, senior fellow at the Center for the Study of Law and Religion at Emory University, sums up the decision well:
“Here is what the decision means: People have First Amendment rights, and even if the corporations themselves are not entitled to Free Exercise exemptions, the people behind the corporate veil, the business owners themselves, certainly are. Requiring the owners of a small, closely held business to go against their religious beliefs would essentially be telling them to close up shop, which is a substantial burden. This is as opposed to a large publicly traded corporation, in which anyone who wanted could just easily sell their stock.
This will not open the door for employers to cloak illegal discrimination behind religious practice. Hobby Lobby won because, as it turns out, there is a less restrictive way to do this, without burdening any religious beliefs and without violating a compelling government interest. Here, the government can chip in, which eliminates the burden on Hobby Lobby and protects employee’s entitlements.”
The outcome of the court case shows that the beliefs of the people behind corporations matter. It does not deny access to all forms on contraception like many assume. The opinion was written very narrowly as to not open Pandora’s box like many fear. It’s ruling does apply to all companies, only those considered “closely held.” And it is definitely a victory for religious freedom.
As Kristan Hawkins, president of Students for Life of America, said, “Thankfully, the Supreme Court protected our basic First Amendment freedoms today. No government should force its citizens to pay for and distribute potentially life-terminating drugs and devices and that is exactly what this government was trying to do. We are grateful that the Supreme Court upheld this core American freedom.”