Hobby Lobby Does Not Have to Pay for Employees' Contraception - TheStreet

NEW YORK (MainStreet) — The Supreme Court handed down one of the most controversial decisions of its term today in Burwell v. Hobby Lobby, holding that "closely held corporations" are exempt from the Affordable Care Act's contraception mandate if it violates the owner's religious beliefs.

Justice Samuel Alito spoke for an increasingly customary 5-4 majority. "Protecting the free-exercise rights of closely held corporations... protects the religious liberty of the humans who own and control them," he wrote in his opinion. Forcing the companies to provide contraception coverage imposed a substantial burden on their religious liberty, a legal fiction which translates to imposing that burden on the families who own and operate Hobby Lobby and Conestoga Wood, the other plaintiff in the case.

Ruling that for-profit companies cannot seek protection as legal persons would force their owners to make a difficult choice, Alito held, "give up the right to seek judicial protection of their religious liberty or forgo the benefits of operating as corporations."

This is the first time that the Court has ruled that companies can seek protection under the federal Religious Freedom Act, the law which protects expressions of faith under the First Amendment. The government may find other ways to provide contraception to workers who don't receive coverage, the Court held, ruling that companies cannot object to having workers receive birth control medication, just to their participating in the process.

Justice Alito was joined by Justices Roberts, Kennedy, Scalia and Thomas in his opinion. Justice Ruth Bader Ginsberg wrote for the dissent, arguing that the contraception coverage is an important, neutral issue about women's health and reproductive rights. Calling the decision one of "startling breadth," Justice Ginsburg warned of the dangers of allowing companies to "opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs."

Saying that the government can simply provide contraception in place of the companies who choose not to socializes the cost of their decision, Justice Ginsburg argued: "[I]n lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab."

A few important things to know about this decision:

Contraception options probably won't change

Lawyers will debate the issues raised in Hobby Lobby concerning corporate personhood and the proper application Religious Freedom Act for years to come. For individual workers, however, this will probably have relatively little impact. Justice Alito's holding that the government can make up the difference for employees of opt-out companies means that the Obama Administration can expand this offering under the Affordable Care Act.

It's likely that they will do so, meaning that even the employees of Hobby Lobby and Conestoga might see only a hiccup in coverage. Even if the Administration can't or won't expand coverage, this decision only directly addressed four specific contraceptive options such as Plan B and the Intrauterine Device (IUD), which the plaintiffs argued are "tantamount to abortion."

Whether a corporation could successfully argue a sincere, religious objection to all forms of birth control remains to be seen, leading us to the second issue:

Other companies can't jump easily on the bandwagon

This was a narrow ruling. Monday's decision applies to "closely held," "family companies" challenging abortifacient contraceptives under the mandate where the government can find a less restrictive method of achieving its goals. (Here, instead of imposing on the plaintiff's religious freedoms, the government can just provide coverage directly.)

Also important is that this is a decision under the Religious Freedom Act, meaning that it is an issue of mixed constitutional and statutory interpretation. Future Congresses, if they choose, could overrule Hobby Lobby simply by changing the text of the RFA as opposed to the Herculean task of changing the Constitution required if the Court had ruled purely under the First Amendment.

The Court went out of its way to make sure that this ruling applied as closely to the facts in front of it as possible, which is good except:

This is only the beginning

Sometimes narrow rulings are an effective way to solve isolated problems in front of the Court, but more often they just create a terrific mess.

This does not "provide a shield for employers who might cloak illegal discrimination as a religious practice," Justice Alito wrote in his opinion, as if saying so could make it true. "This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

Unfortunately, it's a slippery slope and that's could very likely happen. By allowing that - under certain circumstances - the owners of a for-profit company can religiously object to laws they don't like, the Court has opened a potential floodgate. What the limits are of this new right and who can take advantage of it are left undefined, and it's all but certain that both sincere and unscrupulous companies will test the borders of this issue frequently in the years to come.

Most notably, the issue of contraception remains unresolved. The Court held that Hobby Lobby and Conestoga Wood could get exemptions for four specific types of birth control with which they disagreed. In doing so it practically invited the next challenge from a company that wants to discontinue all contraception.

In trying to craft a narrow ruling for the case in front of them the Justices have created a completely unmapped doctrine of law. The immediate impact of Hobby Lobby will be narrow, but its fallout could cast a very long shadow.

--Written for MainStreet by Eric Reed, a freelance journalist who writes frequently on the subjects of career and travel. You can read more of his work at his website www.wanderinglawyer.com.