Monday's Supreme Court decision in Burwell v. Hobby Lobby could have been a disaster for women’s health and equality and, in the long run, for religious freedom. The Court cleverly devised a solution that avoided that disaster and decently accommodates the interests that had collided. The decision was a small victory for women’s equality—a core issue that many lower courts casually ignored.
The Affordable Care Act requires many employers to provide comprehensive insurance coverage, including contraception. Contraception can be expensive: an intrauterine device (IUD), one of the most reliable methods, can cost over $1000. Hobby Lobby, a chain of craft stores, and several other companies objected to this requirement. The owners tried to run their businesses on religious principles, and they regarded some contraception as a form of abortion.
The federal Religious Freedom Restoration Act of 1993 (RFRA) prohibits the government from burdening a person’s exercise of religion unless that burden is the least restrictive means of furthering a compelling government interest. Hobby Lobby claimed, and many lower federal courts agreed, that the government’s interest in guaranteeing cost-free access to contraceptives was not compelling, because there are plenty of exceptions to the mandate. Obamacare exempts employers with fewer than 50 employees, which leaves 20 to 40 million employees uncovered. It does not apply to grandfathered plans, which cover millions more. An interest with so many exceptions, they reasoned, could not be a compelling one. Some of those courts also said that religious liberty could not be outweighed by a vague, generalized interest in “the promotion of public health.” One court was clueless enough to conceptualize the problem as one of determining the harm to the government if the exemption is granted.
The reasoning here is strained. The exemptions in question are mostly temporary. It is hard for a plan to keep its grandfathered status. More importantly, it shouldn’t be hard to decide whether the interests in question are compelling. When contraception is expensive, fewer women use it. Unintended pregnancies are awful for the women involved. They’re also bad for the children: women who don’t know they are pregnant are more likely to drink or smoke and less likely to get prenatal care. The contraception mandate improves the health of pregnant women and newborns, reduces the disparity in health costs between men and women, and, most importantly, allows women to determine the course of their own lives. Involuntary impregnation is one of the nastiest things that one human being can do to another. If promoting women’s health, bodily integrity, liberty and equality is not a compelling state interest, then what would be?
Some courts also concluded that, if Congress really wanted to provide contraception, it could pay for it itself. So they deemed the law to flunk the least-restrictive-means requirement. This rested on pure fantasy. Everyone knows that the Republican Congress will never vote such a subsidy.
In those now superseded decisions, the upshot was that women who worked for those employers—a lot of women; Hobby Lobby has over 13,000 full time employees—got no contraception coverage.
That made Hobby Lobby and other religious employers happy. But in the long run it would have been a disaster for religious liberty. That idea has always rested on the claim that one person’s religion doesn’t hurt anyone else. In Thomas Jefferson’s classic formulation: “[I]t does me no injury for my neighbour to say there are twenty gods, or no god. It neither picks my pocket nor breaks my leg.”
Had Hobby Lobby won on the grounds it claimed, however, religious liberty would suddenly mean the right to impose your religion on other people who don’t share your views. Such a pronouncement by the Court would certainly have strengthened the already growing secularist movement to eliminate any special legal protection for religious freedom.
Instead, the Court assumed, without deciding, that the government’s interest was compelling. Doubtless some members of the five-judge majority disagreed with that, but Justice Anthony Kennedy’s separate concurrence signaled pretty clearly that he thought so, and Justice Ruth Ginsburg’s dissent, for four justices, was even clearer. That’s a majority of the Court. So what could have been a disaster for women’s equality suddenly became a victory.
Having found a compelling interest, the Court moved on to least-restrictive burden. Here it ignored the bogus subsidy option, and noted instead that the Obama administration had crafted a clever solution for religious nonprofits. Those companies’ insurers were required to provide contraception in separate policies, for free—something the insurers were happy to do, because even expensive contraception is cheaper than childbirth.
The Court’s decision essentially required that the same accommodation be extended to religious for-profit employers. That will create some administrative headaches, which is why the administration resisted. But the alternative was imposing a heavy burden on the owners of Hobby Lobby, who clearly take their religious scruples very seriously.
Most importantly, as Justice Samuel Alito noted in his majority opinion, the burden on the women involved “would be precisely zero.” They will get the same free contraception that the challenged rule would have provided. In short: good for women, good for religious liberty. It’s a clever resolution that none of the parties had asked for, but that is better than anything on the menu that the Court had before it.
Andrew Koppelman is the author of The Tough Luck Constitution and the Assault on Health Care Reform and Defending American Religious Neutrality.