Demonstrators outside the U.S. Supreme Court, on the day the Court issued its decision in the ‘Burwell v. Hobby Lobby’ case. (NLJ/Diego M. Radzinschi)
WASHINGTON, D.C. – A divided U.S. Supreme Court on Monday ruled the contraceptive mandate in the federal health care law violated the religious freedom rights of corporate owners who objected to providing the coverage in employee insurance plans.
Justice Samuel Alito Jr., writing for the majority, said “closely held” for-profit corporations couldn’t be required to provide the coverage. The federal government violated the Religious Freedom Restoration Act by placing too heavy a burden on the owners’ exercise of religion without proving the mandate was the “least restrictive” option for ensuring cost-free access to contraceptive care, he said.
“If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies,” Alito wrote. “If these consequences do not amount to a substantial burden, it is hard to see what would.”
Alito was joined in the 5-4 decision by Chief Justice John Roberts Jr., Antonin Scalia, Anthony Kennedy and Clarence Thomas.
To overcome the burden on the owners’ religious rights, the federal government had to prove that the mandate was the “least restrictive” means of serving a “compelling government interest”—in this case, providing cost-free contraceptives to women. Alito wrote the mandate “plainly fails this test” because there were other ways Congress or the executive branch could further that interest.
Alito stressed that the decision was narrower than the dissenters believed. “We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can ‘opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs,’” Alito wrote.
Justice Ruth Bader Ginsburg in a dissenting opinion criticized the “startling breadth” of the majority’s opinion. “Persuaded that Congress enacted [the Religious Freedom Restoration Act] to serve a far less radical purpose, and mindful of the havoc the court’s judgment can introduce, I dissent,” Ginsburg wrote.
Ginsburg wrote that she expected claims under the Religious Freedom Restoration Act to “proliferate, for the court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”
Justice Sonia Sotomayor joined Ginsburg’s dissent, and justices Stephen Breyer and Elena Kagan joined the bulk of the dissenting opinion.
The justices considered two of the multitude of lawsuits filed in federal courts across the country challenging the contraception coverage requirement. The cases, which were consolidated for arguments and decision, were the second challenge to the 2010 Patient Protection and Affordable Care Act to be heard by the high court.
The first produced the 2012 landmark decision in National Federation of Independent Business v. Sebelius, which upheld the law’s individual insurance requirement and an expansion of Medicaid.
The two cases, argued in March, also presented a rematch between Solicitor General Donald Verrilli Jr. and former George W. Bush solicitor general Paul Clement of Bancroft, who faced off in the first health care challenge.
At issue in the latest challenges was the requirement that employee health insurance plans provide no-cost, preventive services coverage for women, including contraceptives. Employers who object to that coverage can either pay a $2,000-tax per employee or not offer employee health insurance at all.
The Green family owns the Oklahoma City-based Hobby Lobby, a national arts and crafts store chain, and Mardel, a related chain of Christian bookstores. Together, the companies have more than 13,000 employees. Conestoga Wood, a Pennsylvania wood cabinet and specialty producer, is owned by the Hahn family and has about 950 employees.
The Greens, practicing Christians, and the Hahns, devout Mennonites, objected to coverage of four of the 20 approved contraceptive methods: two types of intrauterine devices and contraceptives known as Plan B and Ella. They believe those four are “abortifacients” because they prevent implantation of a fertilized egg into the uterus.
The owners claimed that the contraceptive insurance requirement substantially burdened their own and their corporations’ exercise of religion in violation of the RFRA and the First Amendment free-exercise clause.
The Religious Freedom Restoration Act, enacted in 1993, states: “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person … is the least restrictive means of furthering a compelling governmental interest.”
In Hobby Lobby’s challenge, the U.S. Court of Appeals for the Tenth Circuit ruled for the company. The Third Circuit, holding that corporations cannot exercise religion, ruled in July 2013 against Conestoga Wood.
In the Supreme Court, Hobby Lobby limited its claims to RFRA, arguing that the coverage requirement burdened the exercise of religion by both the owners and the corporation, the latter being included in the definition of “persons” in the federal Dictionary Act.
The government, the company argued, failed to show it had a “compelling government interest” for the contraceptive requirement and it had not imposed the least restrictive means of furthering its asserted interest in ensuring women have access to a comprehensive health plan.
Conestoga Wood, which estimated its potential fines at about $35 million annually, relied on both Religious Freedom Restoration Act and the First Amendment’s free exercise clause in the high court.
The Obama Administration had argued that for-profit corporations do not exercise religion.
The coverage requirement only applies to the corporation, not to its owners. But there is no burden on the religion of either group because the employee makes the independent decision whether to use the contraceptive coverage.
The two cases, Burwell v. Hobby Lobby Stores, No. 13-354, and Conestoga Wood Specialties v. Burwell, No. 13-356. attracted an outpouring of amicus briefs—84 (59 supporting the corporations, 23 for the government and two for neither party).