Commentary Contraception

Sotomayor Is Right: Hobby Lobby’s Legal Claims Are Not “Indisputably Clear”

Imani Gandy

Conservative critics have criticized Justice Sotomayor's decision to reject Hobby Lobby's request for an emergency injunction on the birth control benefit under the ACA. The question before her was: Are Hobby Lobby's rights so indisputably clear that an emergency injunction was required? She answered that question correctly: no.

In rejecting Hobby Lobby’s request for an emergency injunction, Supreme Court Justice Sonia Sotomayor stated that the Supreme Court may issue an injunction only when “necessary or appropriate in aid of [its] jurisdiction” and “the legal rights at issue are indisputably clear.” Ultimately, she found that the rights at issue in Hobby Lobby’s contraception mandate lawsuit are not “indisputably clear” and sent Hobby Lobby packing.

Conservatives critics, needless to say, have balked. 

Ed Whelan of National Review Online, for example, claims that Sotomayor’s “order puts the Greens in the appalling position of being forced to choose between violating their religious beliefs by providing insurance coverage for abortion-inducing drugs and subjecting their businesses to potentially crippling fines.” Whelan then states, rather flippantly, that the lower courts “messed up” what he deems “elementary points.”

It is indisputably clear that the Greens, as individuals, have rights under the federal Religious Freedom Restoration Act. It is indisputably clear under the Court’s precedents (see, e.g., Thomas v. Review Board (1981)) that, in determining whether a person is engaged in an “exercise of religion” (one element of the RFRA inquiry), judges should limit themselves to determining whether the person is acting from an honest religious conviction. It is indisputably clear that a monetary fine imposed on an exercise of religion “substantially burdens” that exercise of religion. (My essay here develops these and other points under RFRA.) The courts below that ruled against the Greens messed up these elementary points.

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The points Whelan dismisses as elementary are, as one might imagine, anything but. First, he claims that it is “indisputably clear” that the Greens have rights under the Religious Freedom Restoration Act. Well, yes. That’s true. The Greens do have such rights. Whelan goes on to claim that Court precedent (Thomas v. Review Board) dictates that courts should limit themselves to determining whether the person claiming rights under RFRA is acting from an honest religious conviction. That’s true, too.

So, let’s assume (as a court must) that the Greens are acting from an honest religious conviction. The question becomes: So what? Asking employers to ensure that coverage is provided for all health needs in a plan earned by their employees might, after decisions made by a patient and doctor, end up subsidizing an activity condemned by the employer’s religion is not a substantial burden on religion. 

Many birth control benefit detractors attempt to read the term “substantial” out of the phrase “substantial burden,” and seem to suggest that any burden on religion at all is a “substantial burden,” and therefore unconstitutional. But the Supreme Court indicated in Wisconsin v. Yoder (a case Whelan references in a separate essay cited in his NRO article) that is not a legally-sound proposition:

Although a determination of what is a “religious” belief or practice entitled to constitutional protection may present a most delicate question, the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

Others (Whelan included) separate the burdensome activity (“deliberately providing insurance coverage for prescription drugs or devices inconsistent with their faith, in particular abortion-causing drugs and devices” [Hobby Lobby Complaint, ¶¶ 52-53]) from the burden of the sanction (hefty statutorily-imposed fines) and focus on the latter to the exclusion of the former. But case law (again, Wisconsin v. Yoder) suggests that the “substantial” inquiry relates to the law requiring activity charged as violative of religion, and not only to the punishment or sanction for failing to follow the law.  

Thomas v. Review Board tells us that a court must assume that Hobby Lobby is acting from an honest religious conviction, but that doesn’t mean that a court must automatically accept Hobby Lobby’s word as to the substantiality of the burden. As the district court noted in its order denying Hobby Lobby’s request for a preliminary injunction: 

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter  how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.

Notably, the “substantialness” of the burden has changed in the last year alone. In February 2012, the Catholic Health Association, for example, sanctioned the original compromise that allows employers to pass the contraception coverage buck to insurance companies. Months later in June, the CHA changed its mind.

One wonders, then, how much of a burden the birth control benefit is. Not much, according to the Tenth Circuit:

The central point of the district court’s substantial-burden analysis was succinctly stated:

[T]he particular burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [the corporate] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff[s’] religion. Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.” 

We agree. As the district court noted, other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion. We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.

(citations omitted.)

Even if the Supreme Court were to ultimately take an opposing view, at a minimum, it is far from “indisputably clear” that Whelan’s view (and the views of the myriad plaintiffs to these lawsuits) is the correct one. And it is this lack of clarity that resulted in Sotomayor rejecting Hobby Lobby’s “Hail Mary” request for a preliminary injunction.

Commentary Law and Policy

Here’s What You Need to Know About Your Birth Control Access Post-Supreme Court Ruling

Bridgette Dunlap

Yes, the Zubik v. Burwell case challenged the Affordable Care Act's contraceptive coverage mandate. But that shouldn't stop you from getting your reproductive health needs met—without a co-payment.

In May, the Supreme Court issued a sort of non-decision in Zubik v. Burwell, the consolidated case challenging the Affordable Care Act’s mandate that employers provide contraceptive coverage. The ruling leaves some very important legal questions unanswered, but it is imperative that criticism of the Court for “punting” or leaving women in “limbo” not obscure the practical reality: that the vast majority of people with insurance are currently entitled to contraception without a co-payment—that includes people, for the most part, who work for religiously affiliated organizations.

Two years ago, hyperbole in response to the Court’s decision in Burwell v. Hobby Lobby—that, for example, the Court had ruled your boss can block your birth control—led too many people to believe the contraceptive coverage requirement was struck down. It wasn’t. The Zubik decision provides a good opportunity to make sure that is understood.

If people think they don’t have birth control coverage, they won’t use it. And if they don’t know what coverage is legally required, they won’t know when their plans are not in compliance with the law and overcharging them for contraceptives or other covered services, perhaps unintentionally. The point of the contraceptive coverage rule is to make it as easy as possible to access contraceptives—studies show seemingly small obstacles prevent consistent use of the most effective contraceptives. Eliminating financial barriers isn’t enough if informational ones undermine the goal.

The most important thing to know is that most health plans are currently required to cover reproductive health services without a co-payment, including:

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  • One version of every kind of FDA-approved contraception—that is, only the generic or the brand-name version of the contraceptive could be covered, but at least one must be. So you shouldn’t be paying a co-payment whether you use the pill, the patch, the shot, or want long-acting reversible contraception (LARC) like an IUD, which is more expensive, but most effective.
  • Screening for HIV and high-risk strains of HPV
  • An annual well-woman visit
  • Breastfeeding counseling and supplies like pumps

There are exceptions, but most plans should be covering these services without a co-payment. Don’t assume that because you work for Hobby Lobby or Notre Dame—or any other religiously affiliated employer—that you don’t currently have coverage.

The original contraceptive coverage rule had an “exemption” for church-type groups (on the somewhat dubious theory that such groups primarily employ individuals who would share their employers’ objection to contraception). When other kinds of organizations, which had religious affiliations but didn’t primarily employ individuals of that same religion, objected to providing contraceptive coverage, the Obama administration came up with a plan to accommodate them while still making sure women get contraceptive coverage.

This “accommodation” is a workaround that transfers the responsibility to provide contraceptive coverage from the employer to the insurance company. After the employer fills out a form noting it objects to providing contraception, the insurance company must reach out to the employee and provide separate coverage that the objecting organization doesn’t pay for or arrange.

This accommodation was originally available only to nonprofit organizations. But dozens of for-profits, like Hobby Lobby, sued under the Religious Freedom Restoration Act (RFRA)—arguing that their owners were religious people whose beliefs were also burdened by the company having to provide coverage.

The Hobby Lobby decision did not say your boss’s religious belief trumps your right to a quality health plan. What the Court did was point to the existence of the accommodation for nonprofits as proof that the government could achieve its goals of ensuring coverage of contraception through a workaround already in place to give greater protection to objectors. Basically, the Court told the government to give the for-profits the same treatment as the nonprofits.

The Hobby Lobby decision states explicitly that the effect of this on women should be “precisely zero.” The Obama administration subsequently amended the contraceptive regulations, making coverage available to employees of companies like Hobby Lobby available through the accommodation. Hobby Lobby added some headaches for administrators and patients, but it did not eliminate the contraceptive coverage rule.

Next, however, the nonprofits went on to argue to the Supreme Court and the public that the accommodation the Court had seemed to bless in Hobby Lobby also violated RFRA—because having to fill out a form, which notified the government that they objected to contraceptive coverage and identifying their insurers, would substantially burden their religious beliefs.

Following oral arguments in Zubik, the eight-member Supreme Court issued a highly unusual order: It asked the parties to respond to its proposed modification of the accommodation, in which the government would not require objecting nonprofits to self-certify that they oppose contraception nor to identify their insurers. The government would take an organization’s decision to contract for a health plan that does not cover contraception to be notice of a religious objection and go ahead with requiring the insurer to provide it instead.

The petitioners’ response to the Court’s proposed solution was “Yes, but…” They said the Court’s plan would be fine so long as the employee had to opt into the coverage, use a separate insurance card, and jump through various other hoops—defeating the goal of providing “seamless” contraceptive coverage through the accommodation.

When the Court issued its decision in Zubik, it ignored the “but.” It characterized the parties as being in agreement and sent the cases back to the lower courts to work out the compromise.

The Court told the government it could consider itself on notice of the petitioners’ objections and move forward with getting separate contraceptive coverage to the petitioners’ employees, through the accommodation process, but without the self-certification form. How the government will change the accommodation process, and whether it will satisfy the petitioners, are open questions. The case could end up back at the Supreme Court if the petitioners won’t compromise and one of the lower courts rules for them again. But for prospective patients, the main takeaway is that the Court ruled the government can move forward now with requiring petitioners’ insurers to provide the coverage that the petitioners won’t.

So—if your plan isn’t grandfathered, and you don’t work for a church or an organization that has sued the government, your insurance should be covering birth control without a co-payment. (If your plan is grandfathered and your employer makes a change to that plan, then those formerly grandfathered plans would be subject to the same contraceptive coverage requirements.) If you do work for one of the nonprofit petitioners, the government should be making contraceptive coverage available even before the litigation is resolved. And in some cases, employees of the petitioners already have coverage. Notre Dame, for example, initially accepted the accommodation before being pressured by off-campus contraception opponents to sue, so its insurer is currently providing Notre Dame students and employees coverage.

Don’t despair about the Supreme Court’s gutting access to contraception. Assume that you have coverage. The National Women’s Law Center has great resources here for finding out if your plan is required to cover contraception and how to address it with your insurance plan if it isn’t in compliance, and a hotline to call if you need help. The fact that equitable coverage of women’s health care is the new status quo is a very big deal that can be lost in the news about the unprecedented litigation campaign to block access to birth control and attacks on Obamacare more generally. Seriously, tell your friends.

Analysis Law and Policy

Religious Accommodations Try to Turn Back the Clock

Elizabeth Reiner Platt

Although the U.S. Supreme Court called an attempt to discriminate based on a religious belief “patently frivolous” in one 1968 case, the proliferation of such laws today jeopardizes anti-discrimination efforts on multiple fronts nationwide.

“Oh, it’s a big problem with the members of my church, my community, and my mother-in-law .… They don’t allow that black and white shacking.”

That was the explanation Mississippi landlord Gene Baker gave for evicting Erica Flores Dunahoo and her husband, National Guard Sgt. Stanley Hoskins, from his RV park in February, Dunahoo told the Clarion-Ledger newspaper. Dunahoo, who is Latina and Native American, and Hoskins, who is Black, moved to another RV park with higher rent.

What’s even more troubling, however, is that some state laws recently introduced across the country would actually sanction this type of discrimination. While the couple’s eviction would likely violate the federal Fair Housing Act, which applies to most housing providers nationwide, some recently proposed state bills would create religious exemptions to state and local anti-discrimination laws—many of which provide important protections to people who may not be sufficiently covered by federal law. (As a side note, Mississippi is actually one of few states that has no state Fair Housing Act).

Just as the Civil Right Act of 1964 prompted segregationists to demand religious exemptions from the law, the gains of the LGBTQ rights movement has led to the introduction of dozens of state bills designed to provide individuals and companies with a license to discriminate based on their religious beliefs. While these new bills may be motivated by opposition to LGBTQ rights, it’s important to note that many of these vague, broad, and poorly worded bills would not just affect the LGBTQ community—they could also renew demands for a religious right to discriminate on the basis of race, sex, or other factors.

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Many academics, advocates, journalists, and politicians have already noted that today’s religious objections mirror those made by opponents of desegregation in the past. Religious exemptions from the Civil Rights Act were considered both by the legislature and by federal courts. But while there is a long history of religious resistance to desegregation, both Congress and the Supreme Court flatly rejected religious exemptions from anti-discrimination law in the 1960s.

An early version of the Civil Rights Act of 1964 excused religiously affiliated employers from compliance with the entire act. This was discarded, however, and Congress’ final draft of the Civil Rights Act only exempted religious organizations from religious discrimination provisions, so that they could give special preference to people who shared the organization’s religious faith.

Once the Civil Rights Act was passed, some business owners, like Maurice Bessinger of the South Carolina-based barbecue chain Piggie Park, argued in court that even without an exemption, under the First Amendment their religious beliefs should protect them from being forced to desegregate. In the 1968 case Newman v. Piggie Park Enterprises, Inc., the Supreme Court called the restaurant’s religious liberty claims “patently frivolous.”

Despite the fact that a religious right to segregation was prohibited decades ago, Dunahoo and Hoskins’ experience shows that religiously motivated racial discrimination is still alive and well today.

While some bills—like Missouri’s SJR 39, which died in committee in late April—focus more narrowly on religious objections to marriage between persons of the same sex, other bills would protect those who oppose interfaith or interracial marriage or even desegregation. Georgia’s HB 757, which was vetoed by Republican Gov. Nathan Deal in early April, could have allowed government clerks to refuse to provide marriage licenses to interracial couples or religious organizations to refuse to provide any “social, educational, or charitable services that violate such faith based organization’s sincerely held religious belief.” Kentucky’s SB 180, which passed the state senate in March and is now awaiting a vote in the house, contains similar provisions.

And while federal laws including the Civil Rights Act and the Fair Housing Act contain strong protections against racial discrimination, accommodations that close off discrimination claims based on state or local law are nevertheless significant.

Nearly every U.S. state and many municipalities have adopted at least some anti-discrimination protections in employment, housing, or public accommodations. These state- or local-level discrimination claims may be easier to litigate than federal anti-discrimination laws. For example, they may require a lower standard of proof to show that discrimination occurred. Additionally, state and local discrimination laws often cover smaller landlords or businesses than federal law. Finally, state and local claims may provide additional monetary damages or other forms of relief to those who face discrimination. By carving out religious exemptions from state and local anti-discrimination law, accommodation bills would force people of color and other marginalized populations to once again bear the burden of others’ discriminatory religious beliefs.

State laws that allow for religiously motivated discrimination would also close off other legal claims, such as those based on contract violations. For example, if a religiously affiliated company fired an employee for marrying someone of a different race, she may lose the right to sue based on breach of an employment contract if the employer is covered by a broad accommodation law.

Furthermore, it’s possible that those who wish to discriminate could also demand an exemption from federal anti-discrimination law under the Religious Freedom Restoration Act. This is the same law the craft store giant Hobby Lobby used to avoid providing its employees with contraception, as required by the Affordable Care Act.

In order to succeed with such an argument, a religious objector would have to show that hiring, housing, or serving a particular group of people (like interracial couples) would burden his exercise of religion. If this is the case, then he would win his claim unless the government could show that federal anti-discrimination law serves a “compelling government interest,” and there is no way of furthering that interest that is less burdensome to the objector’s religious exercise.

In Burwell v. Hobby Lobby, the majority opinion indicated that it believed the government does have “a compelling interest in providing an equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.” But the Court has not actually ruled on this issue, and its failure to find an overriding government interest in women’s health, dignity, and equality in Hobby Lobby does not bode well for future cases.

By allowing religion to be used as a veil for discrimination, state legislators are ignoring the lessons of history. In Newman v. Piggie Park Enterprises, Inc., the Supreme Court dismissed a broad religious liberty claim. The argument that personal religious beliefs may trump the most basic liberty and equality rights of others should be rejected with equal force today by state governments considering religious exemption bills, and by judges being asked to find a religious right to discriminate.