Analysis Law and Policy

Court Rules Hobby Lobby Can Be Considered a Religious ‘Person’

Jessica Mason Pieklo

In ruling Hobby Lobby can be considered a "person" with religious rights, the Tenth Circuit Court of Appeals is heading down a dangerous path.

Religious conservatives are one step closer to convincing the federal judiciary to shield corporations by granting them religious rights, thanks to new reasoning in a decision handed down Thursday in the Hobby Lobby case.

Hobby Lobby is challenging the part of the Affordable Care Act (ACA) that requires all insurance plans to offer coverage of contraception without a co-pay. At the heart of the case is whether a for-profit company must comply with this provision of the ACA, otherwise known as Obamacare. Hobby Lobby is a national craft supply chain headquartered in Oklahoma and has 525 locations and more than 13,000 employees across the country. The company’s owners have objected to providing coverage for emergency contraception and IUDs.

In a long and complicated decision a divided Tenth Circuit Court of Appeals ruled that even though arts and crafts chain Hobby Lobby and its smaller sister operation Mardel, a Christian-oriented bookstore and educational supply company, are secular, for-profit companies, they have a right to religious freedom under the law and therefore are likely exempt from the contraception mandate in Obamacare.

The decision, which was a combination of six separate opinions totaling 165 pages could be considered a coming attraction of how the lower court will rule when it considers the merits of the question of whether or not the contraception mandate is unconstitutional. On the issue of whether for-profit corporations are religious persons, the Court split five to three with the majority finding that, if they are owned by religiously devout individuals who control the company’s affairs, such corporations are protected by the federal Religious Freedom Restoration Act, a law designed to shield individuals from laws that “substantially burden” the free exercise of religion.

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According to the majority, it is possible for corporations to absorb, as their own, the religious beliefs of their owners. Once the court signed on to that assumption it was an easy leap for the majority to conclude that having absorbed the religious beliefs of its owners, such corporations then naturally conduct their businesses in such a way that realizes, or expresses those convictions.

And it didn’t stop there. When considering how other statutes like Title VII of the Civil Rights Act deal with the issue of religious exemptions in the workplace that depend on a distinction between whether or not those businesses are profit or non-profit, the court said it considered it an “open question” as to whether such exemptions violate the Establishment Clause. Great. Just what Justice Alito was hoping to hear, I’m sure.

The decision came four days before Hobby Lobby and Mardel said they would be required to start providing the full range of mandated coverage, or face federal fines they claim could run to a total of at least $1.3 million a day, or almost $475 million a year. Those financial concerns were a key part of the reasoning used by the majority to conclude that, as religious persons under RFRA, the corporations would suffer “irreparable harm.” As the dissent pointed out, there was not the same consideration paid to the cost and harm of each individual employee denied benefits as a result of the decision.

Thankfully the court didn’t go so far as to say that corporations are religious persons under the Constitution, just under the RFRA, but only because Congress never decided to exclude them in the definition of who was a person under the Act. So yes, if there’s a silver lining in that conclusion it is that the court didn’t go so far as to affirmatively give status or suggest a broader First Amendment right here. But it might have done something worse. Instead, it cherry-picked reasoning from First Amendment religious theory to justify its reading of the RFRA, in a sense presuming from the start that the analysis should begin with a religious, rather than secular inquiry.

The immediate effect of the decision is to return the case back to the district court in Oklahoma to consider several additional factors that Hobby Lobby must prove in order to get a temporary reprieve from the mandate, including whether granting the injunction to permanently block it would serve the public interest. The National Women’s Law Center (NWLC) filed an amicus brief in the case, focusing on the compelling public interests promoted by the contraceptive coverage benefit and NWLC Co-President Marcia D. Greenberger reacted to the decision in a statement:

We are deeply disappointed with this decision by the 10th Circuit Court. As noted in the dissent, a woman’s decision about birth control is a personal decision, not her boss’s. Nothing in the health care law constrains an individual’s exercise of religion. The law protects an employee’s ability to get the contraceptives that she needs without co-pays or unnecessary obstacles.

It’s critically important to note that the decision was only at the preliminary injunction stage, and is therefore not a ruling on the merits. But in many ways it can be considered a sneak peek at the analysis the lower court will perform when it re-considers whether or not a secular, for-profit arts and crafts chain is entitled to religious freedom and the right to exercise that freedom by discriminating against its employees. If the lower court rules as the Tenth Circuit believes it should and uses the reasoning suggested by the Tenth Circuit, what for-profit business wouldn’t want to consider itself a “religious person” to avoid the costs of coverage and the penalties for non-compliance? Of course, that’s exactly the point.

Commentary Contraception

For Students at Religious Universities, Contraception Coverage Isn’t an Academic Debate

Alison Tanner

When the U.S. Supreme Court sent a case about faith-based objections to the Affordable Care Act's contraceptive mandate back to lower courts, it left students at religious colleges and universities with continuing uncertainty about getting essential health care. And that's not what religious freedom is about.

Read more of our articles on challenges to the Affordable Care Act’s birth control benefit here.

Students choose which university to attend for a variety of reasons: the programs offered, the proximity of campus to home, the institution’s reputation, the financial assistance available, and so on. But young people may need to ask whether their school is likely to discriminate in the provision of health insurance, including contraceptive coverage.

In Zubik v. Burwell, a group of cases sent back to the lower courts by the U.S. Supreme Court in May, a handful of religiously affiliated universities sought the right to deny their students, faculty, and staff access to health insurance coverage for contraception.

This isn’t just a legal debate for me. It’s personal. The private university where I attend law school, Georgetown University in Washington, D.C., currently complies with provisions in the Affordable Care Act that make it possible for a third-party insurer to provide contraceptive access to those who want it. But some hope that these legal challenges to the ACA’s birth control rule will reverse that.

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Georgetown University Law Center refused to provide insurance coverage for contraception before the accommodation was created in 2012. Without a real decision by the Supreme Court, my access to contraception insurance will continue to be at risk while I’m in school.

I’m not alone. Approximately 1.9 million students attend religiously affiliated universities in the United States, according to the Council for Christian Colleges and Universities. We students chose to attend these institutions for lots of reasons, many of which having nothing to do with religion. I decided to attend Georgetown University Law Center because I felt it was the right school for me to pursue my academic and professional goals, it’s in a great city, it has an excellent faculty, and it has a vibrant public-interest law community.

Like many of my fellow students, I am not Catholic and do not share my university’s views on contraception and abortion. Although I was aware of Georgetown’s history of denying students’ essential health-care benefits, I did not think I should have to sacrifice the opportunity to attend an elite law school because I am a woman of reproductive age.

That’s why, as a former law clerk for Americans United for Separation of Church and State, I helped to organize a brief before the high court on behalf of 240 students, faculty, and staff at religiously affiliated universities including Fordham, Georgetown, Loyola Marymount, and the University of Notre Dame.

Our brief defended the sensible accommodation crafted by the Obama administration. That compromise relieves religiously affiliated nonprofit organizations of any obligation to pay for or otherwise provide contraception coverage; in fact, they don’t have to pay a dime for it. Once the university informs the government that it does not want to pay for birth control, a third-party insurer steps in and provides coverage to the students, faculty, and staff who want it.

Remarkably, officials at the religious colleges still challenging the Affordable Care Act say this deal is not good enough. They’re arguing that the mere act of informing the government that they do not want to do something makes them “complicit” in the private decisions of others.

Such an argument stands religious freedom on its head in an attempt to impose one group’s theological beliefs on others by vetoing the third-party insurance providers’ distribution of essential health coverage to students, faculty, and staff.

This should not be viewed as some academic debate confined to legal textbooks and court chambers. It affects real people—most of them women. Studies by the Guttmacher Institute and other groups that study human sexuality have shown that use of artificial forms of birth control is nearly universal among sexually active women of childbearing years. That includes Catholic women, who use birth control at the same rate as non-Catholics.

Indeed, contraception is essential health care, especially for students. An overwhelming number of young people’s pregnancies are unplanned, and having children while in college or a graduate program typically delays graduation, increases the likelihood that the parent will drop out, and may affect their future professional paths.

Additionally, many menstrual disorders make it difficult to focus in class; contraception alleviates the symptoms of a variety of illnesses, and it can help women actually preserve their long-term fertility. For example, one of the students who signed our brief told the Court that, “Without birth control, I experience menstrual cycles that make it hard to function in everyday life and do things like attend class.” Another woman who signed the brief told the Court, “I have a history of ovarian cysts and twice have required surgery, at ages 8 and 14. After my second surgery, the doctor informed me that I should take contraceptives, because if it happened again, I might be infertile.”

For these and many other reasons, women want and need convenient access to safe, affordable contraceptives. It is time for religiously affiliated institutions—and the Supreme Court—to acknowledge this reality.

Because we still don’t have an ultimate decision from the Supreme Court, incoming students cannot consider ease of access to contraception in deciding where to attend college, and they may risk committing to attend an university that will be legally allowed to discriminate against them. A religiously affiliated university may be in all other regards a perfect fit for a young woman. It’s unfair that she should face have to risk access to essential health care to pursue academic opportunity.

Religious liberty is an important right—and that’s why it should not be misinterpreted. Historically, religious freedom has been defined as the right to make decisions for yourself, not others. Religious freedom gives you have the right to determine where, how, and if you will engage in religious activities.

It does not, nor should it ever, give one person or institution the power to meddle in the personal medical decisions of others.

News Media

Study: Politicians Dominate Nightly News Reports on Birth Control

Nicole Knight Shine

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

When it comes to asking experts to weigh in on birth control, the nation’s three major TV networks favor political figures over doctors, according to a forthcoming paper in the journal Contraception.

Analyzing nightly news segments on contraception on ABC, CBS, and NBC between 2010 to 2014, the authors found that few broadcasts included medical professionals (11 percent) or health researchers (4 percent). Politicians, however, dominated coverage, appearing as sources 40 percent of the time, followed by advocates (25 percent), the general public (25 percent), and Catholic Church leaders (16 percent).

Sixty-nine percent of news segments on birth control included no medical information, the authors found.

Study co-author Michelle H. Moniz, assistant professor of obstetrics and gynecology at the University of Michigan, noted that news segments largely framed contraception as a political issue, rather than a matter of public health.

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“Health professionals are an untapped resource for ensuring that the most up-to-date, scientific information is available to the public watching the news,” Moniz said in an email to Rewire.

An estimated 24 million Americans watch nightly news, making it an “influential information source,” the authors note.

And although nearly half of pregnancies in the United States each year are unplanned, news segments did not emphasize highly effective contraception like IUDs, the researchers found. Instead, emergency contraception, commonly known as the morning-after pill, warranted the most coverage, at 18 percent, followed by the daily oral contraceptive pill, at 16 percent.

The researchers’ analysis of 116 nightly news segments coincided with the rollout of the Affordable Care Act by President Obama and continued through the June 2014 U.S. Supreme Court decision in Burwell v. Hobby Lobby, which carved out the right for private corporations to deny birth control coverage to employees on religious grounds.

“We found that when the network television media covers contraception,” the authors observed, “they do so within a largely political frame and emphasize the controversial aspects of contraception, while paying less attention to health aspects and content experts.”

The paper was authored by five researchers from the University of Michigan, Ann Arbor; the Veterans Affairs Center for Clinical Management and Research in Michigan; and the Pennsylvania Department of Health.

The study builds on earlier work exposing media bias and gender disparities in reproductive health coverage.

In June, an analysis of prime-time news programs on cable networks CNN, Fox News, and MSNBC by media watchdog group Media Matters for America found that 40 percent of guests on all three networks made anti-choice statements or identified as anti-choice, compared with 17 percent of guests who made pro-choice statements or identified as reproductive rights advocates. On Fox, guests made a total of 705 inaccurate statements about abortion care over a 14-month period.

The nightly news study follows a report earlier this year on gender disparities by the Women’s Media Center, a nonprofit advocacy group, indicating that male journalists dominate reproductive health coverage, with bylines on 67 percent of all presidential election stories related to abortion and contraception. Female journalists, in comparison, wrote 37 percent of articles about reproductive issues.