Tuesday, July 22, 2014


The much awaited verdict on the Hobby Lobby religious freedom vs. ObamaCare birth control coverage is in.  As expected there has been much ideological and partisan based spin on the 5-4 verdict in favor of Hobby Lobby.   Conservatives have hailed the decision as an affirmation of religious freedom and liberals and feminists have condemned the verdict in any means they could think of.  It has been described as an assault on women’s rights, health, and personal freedom of choice.  Others have described the decision as one made by “an all male majority”, as if this were unusual on a court comprised of six men and three women.  The implication is that the male justices are somehow ineligible to vote in cases involving female citizens as a group.  It is clear however, that the vote broke down along the familiar conservative-liberal voting blocs.

However, most of the “analysts”/pundits ignored the basic facts of the case.  This was not a constitutional case involving first amendment rights.  It was not primarily a birth control case involving women’s access to birth control products.  The case was a statutory case decided by the justices on their interpretation of the 1993 Religious Freedom Restitution Act.  The legislation was passed by 97-3 in a Senate controlled by the Democrats and by voice vote in the House also controlled by the Democrats and then signed by President Bill Clinton.

The core provision of the Act states that:  “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.”[3] “The law provided an exception if two conditions are both met. First, the burden must be necessary for the “furtherance of a compelling government interest.”[3] “Under strict scrutiny, a government interest is compelling when it is more than routine and does more than simply improve government efficiency. A compelling interest relates directly with core constitutional issues.[4] The second condition is that the rule must be the least restrictive way in which to further the government interest.”

Thus the Court’s majority found that Hobby Lobby’s owners, who claimed that being forced to provide certain birth control products which prevented a fertilized human egg from implanting in the uterus was the equivalent of abortion and was an infringement on their religious principles as protected by the 1993 Act.  This interpretation of the law thus did not address any direct impact on the female employees, let alone the post-verdict exaggerated claims made by various women’s advocates about a wholesale attack on women’s rights and health.

Essentially, the majority found that the ownership of closely held, for profit corporations are entitled to the protections of the 1993 statute and that the facts of the case showed an insufficient “compelling government interest” in imposing the birth control insurance requirement via ObamaCare.  They also cited the belief that the requirement and the harsh penalties which applied for non-compliance did not represent “the least restrictive way in which to further the government interest.”These interpretations could certainly be debated and most likely were the subject of discussions by the Court in their private deliberations.

 On the dissent side, which included all three of the Court’s female justices and the reliably liberal voter, Justice Stephen Bryer, the focus of the minority opinion written by Justice Ruth Ginsburg was largely about outcomes rather than the applicability of the 1993 statute.  This is a typical orientation of the liberal bloc.  They want to interpret or reject laws to create outcomes which fit their ideology based views of a just society.  Thus the emphasis was on the alleged negative impact on women’s health which she mentioned forty-three times.

“. . . Women’s reproductive well-being is vital to both their personal prospects and the country’s fortunes.”

While this generality is no doubt true, it is too overly broad to rise to the level of a “compelling government interest”.  There are many methods of birth control but the most common is “the pill”, which became available in 1960.  The Patient Protection and Affordable Care Act which made health insurance coverage for birth control products mandatory didn’t come into existence until March of 2010.  Was there an epidemic of female health issues related to the absence of free birth control in the previous sixty years?  Indeed for throughout those six decades millions of women provided their own birth control without widespread hardship or much controversy.  Today, a variety of birth control pills are available for around nine dollars per month.

The issue of insurance coverage has taken on symbolic/political importance to feminist groups which outweigh its practical effects, as the temptation for political pandering in the run up to the 2014 congressional elections demonstrates.  Here is Harry Reid, Democrat Senate Majority Leader looking for votes sufficient to keep his job as Majority Leader which is at risk.

     “If the Supreme Court will not protect women’s access to health care, then Democrats will,” Reid said in a statement. “We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”

Despite all the hyperbole, Justice Ginsburg did include one argument in her dissent that exposes the key flaw in the majority opinion:

            “. . . A decision of startling breadth and it allows companies to opt out of any law they judge incompatible with their sincerely held religious beliefs.”

While not precisely accurate since the conditions imposed by the 1993 statute would still have to be met, this decision certainly opens the door to an unlimited variety of such claims with regard not too just ObamaCare but as Justice Ginsburg points out, “any law” found objectionable on religious grounds by the owners of closely held corporations and other types of businesses.  Supporters of Hobby Lobby were focused on the beliefs of parts of the nation’s dominant Christian faith, but the Courts ruling applies to also to all established belief systems and will no doubt be tested by smaller groups well out of the mainstream of American religious practice.

With regard to this particular case, it seems to defy credulity that the owners of Hobby Lobby being required to pay for birth control methods as part of much larger health insurance plan ,that neither they nor any of their employees were required to use, constituted a “substantial burden” to the owners “exercise of religion.”  Surely the Green family’s (the Hobby Lobby owners) exercise of their Christian faith encompassed far more in terms of belief and practice than this narrow issue whose application by their employees might never have been used and which they, as owners, would never be aware, much less be directly responsible.

The celebration by the political “Right” has emphasized the issue of “religious freedom” but it is likely that there is considerable overlap over satisfaction for what appears to be another crack in the foundation of ObamaCare.  While ObamaCare has never enjoyed majority support and is seriously flawed, this case was not about ObamaCare.  Nor, as stated earlier was it about women’s rights.  It was a narrowly decided case about the eligibility of closely held, for profit corporations to make claims under the 1993 Religious Freedom Restitution Act.  The Court had already found in the Citizens United vs. Federal Election Commission 2010 opinion that corporations had First Amendment rights similar to individuals, or put another way, that individuals acting under a corporate identity retained their individual First Amendment rights.  So it came down to the applicability of the 1993 Acts standards of a “substantial burden” to religious exercise, the “compelling government interest”, and the availability of “less restrictive” way to further that interest.

 The Court defined the substantial burden on the Green family in an overly broad fashion. It diminished the importance of the compelling government interest which depends on equal accountability of all persons and corporate entities under the law, instead opening the door to what may be “observance of the law by the willing” under the guise of religious freedom. 

 With regard to the facts and the law, the dissenting Justices were only partially right.  The majority opinion was simply wrong.


No comments: