4:38pm

Mon June 30, 2014
Law

High Court Allows Some Companies To Opt Out Of Contraceptives Mandate

Originally published on Mon June 30, 2014 7:07 pm

For the first time, the U.S. Supreme Court has ruled that a for-profit corporation can refuse to comply with a general government mandate because doing so would violate the corporation's asserted religious beliefs.

By a 5-4 vote, the court struck an important part of President Obama's health care law — the requirement that all insurance plans cover birth control — because it conflicted with a corporation owners' religious beliefs.

The challenge to the birth control coverage mandate was brought by the Hobby Lobby corporation, a chain of 500 arts and crafts stores that employs 16,000 people. Its owners object to two forms of birth control — IUDs and morning-after pills — because they consider those to be an early form of abortion.

Monday's decision would apply to all forms of contraception, and potentially to other medical procedures and government regulations.

The court, however, sought to limit the effects of its decision. Writing for the conservative majority, Justice Samuel Alito said the ruling applies only to "closely held" corporations — those that do not have public shareholders.

As the dissenters pointed out, however, " 'closely' held is not synonymous with 'small.' " Many of America's biggest multibillion-dollar corporations are closely held — for example, Cargill has 140,000 employees and boasts revenues of $137 billion annually; Koch Industries has revenues of $115 billion; computer manufacturer Dell, $57 billion; international engineering and construction firm Bechtel, $38 billion; candy giant Mars, $33 billion; Toys R Us, $13.5 billion; and food company Heinz, $11.5 billion, to name just a few.

The court's decision was not based on the First Amendment right to free exercise of religion. Alito conceded that the First Amendment would not cover this situation. But he noted that after the Supreme Court ruled in 1990 that the First Amendment provides no religious exception for a law applied equally to everyone, Congress stepped in to heighten protections for religious groups.

The Religious Freedom Restoration Act, known as RFRA, was passed, said Alito, to ensure that corporate owners are not forced to choose between their religious convictions and forgoing the economic benefits of operating as a corporation.

RFRA says that when a law imposes a "substantial burden" on religion, it must be justified as serving a compelling government interest, and the government must use the least restrictive means to achieve its goals. Here, said Alito, the government has other ways to provide birth control coverage. The government can pay for the benefit itself or it can do what it did for religious nonprofits — arrange for insurance companies to eat the cost of birth control coverage because doing so is much cheaper than paying for many more pregnancies.

The White House said Monday that it is still assessing how to proceed.

The nation's major medical associations all supported the birth control coverage requirement. "The practical impact is that this inhibits my ability to provide the best care for women," said Dr. Jeanne Conry, immediate past president of the American College of Gynecologists and Obstetricians. She noted that birth control devices like those at issue in Monday's case, IUDs, are the best and safest method of birth control for many women. And they are often used not to prevent pregnancy but to control abnormal bleeding and to prevent hysterectomies.

"This clearly puts an employer in the exam room with me and my patient, and that's untenable," Conry said.

Cecile Richards, president of the Planned Parenthood Federation of America, noted that about a third of American women have been unable to afford birth control at some time in their lives.

Under this decision, a CEO's "feelings about birth control trump" the needs of female employees for this benefit, Richards said.

Alito cast the decision as limited in scope — he seemed to suggest, for instance, that it would not cover religious objections to vaccines and blood transfusions, or religious objections to complying with civil rights laws.

But legal experts disagreed about whether the decision is in fact so limited. Cornell law professor Michael Dorf notes that in referring to anti-discrimination laws Alito referred only to race discrimination. "That leaves out sex discrimination, age discrimination, disability discrimination, and perhaps most significantly sexual orientation discrimination, where there are cases in the pipeline."

Professor Marci Hamilton of the Cardozo School of Law contends that by expanding the understanding of what constitutes a substantial burden on religion, the court has invited much more litigation and helped create an entirely new and entitled group of religious believers.

"In the United States, we're experiencing an insatiable drive for religious freedom," said Hamilton. "And in that atmosphere we will see plenty of people coming forward" to claim religious rights that never before would have been approved.

But University of Virginia law professor Douglas Laycock has a very different view. He sees the court's decision as "extremely narrow." "This is about businesses where every owner agrees on a religious commitment and has demonstrated that commitment over time," said Laycock. "And there just aren't many such cases."

Professor Richard Garnett of Notre Dame Law School agrees in part, but he adds that Monday's ruling gives a new expansiveness to RFRA. "Justice Alito is saying now RFRA means what it says — RFRA expresses Congress' commitment to a fairly broad accommodation principle ... the idea that government, when it can accommodate religious freedom, it should."

Justice Ruth Bader Ginsburg wrote Monday's principal dissent. She and Justice Sonia Sotomayor would have ruled that for-profit corporations are not covered by RFRA, while Justices Stephen Breyer and Elena Kagan would not have reached that question. All four agreed that the government was justified in requiring that commercial enterprises cover birth control.

Ginsburg ridiculed the notion that the opinion is limited. "And where is the stopping point to the 'let the government pay' solution?" she asked. "Suppose it offends an employer's religious belief to pay the minimum wage, or to accord women equal pay for substantially similar work?"

"Our cosmopolitan nation is made up of people of almost every conceivable religious preference," Ginsburg opined. "In passing RFRA, Congress did not alter a tradition in which one person's right to free exercise of her religion must be kept in harmony with the rights of her fellow citizens, and with the common good."

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