Print Story Hobby Lobby
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By aphrael (Mon Jun 30, 2014 at 09:58:17 PM EST) (all tags)
The Supreme Court today handed down a decision in the case of three lawsuits challenging the rule, promulgated by the Department of Health and Human Services, which required those companies to pay for employee health insurance which included free coverage for certain contraceptive techniques the companies objected to. The decision ignited a firestorm of controversy and outrage, much of it not responsive to what the Court was actually saying or ruling.

This decision does NOT say that, broadly speaking, companies can avoid paying for the health insurance of their employees. It does NOT say that, broadly speaking, companies do not have to pay for contraceptive care. It does NOT say that, as some commentators have had it, women are second-class citizens, that contraceptive care isn’t important or isn’t health care, or that only Christian religious beliefs are protected. It is a very narrow decision, as we have generally come to expect from Justice Alito, and it deliberately calls out many of the potential extreme extensions of the law as things which the decision does not hold.

That said, in my view, it’s also a deeply flawed decision which carries grave and serious risks if it is not carefully cabined.




§ § §

First, some background. This decision was NOT an interpretation of the First Amendment, and the Supreme Court is not saying that the Constitution requires this result. It is an interpretation of something called the Religious Freedom Restoration Act, as amended by something called the Religious Land Use and Institutionalized Persons Act. Congress passed the Religious Freedom Restoration Act in response to an earlier Supreme Court Decision, Employment Division of Oregon v. Smith. Smith dealt with some American Indians who had filed for unemployment insurance in Oregon, only to be told that they could not obtain unemployment insurance because they had been convicted of using peyote, which they said their religion required as a sacrament. In Smith, the Supreme Court upheld the decision of the Oregon courts, arguing that the first amendment does not require that religious persons be able to use their religion as an exemption from generally applicable laws. Congress did not like that outcome, and passed the Religious Freedom Restoration Act in response to it.

As amended by the Religious Land Use and Institutionalized Persons Act, the Religious Freedom Restoration Act says that federal government actions shall not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability. If a regulation does substantially burden a person’s exercise of religion, the person is entitled to an exemption unless the government can demonstrate that application of the burden to the person (a) furthers a compelling government interest and (b) is the least restrictive means of furthering that government interest.

This is a general rule. It applies to ALL federal government agency actions, unless some subsequent statute explicitly overrides it. And it applies to the way courts interpret subsequent statutes, unless the subsequent statutes explicitly overrides it.

It is a constitutional rule. It requires the federal government to be more accommodating to religion than the First Amendment would require it to, but because it is neutral among religions, it does not constitute an establishment of religion.
It is the rule which the Supreme Court was interpreting this morning.

§ § §

The lawsuits in this case came from three companies who objected to a specific part of a rule that the Department of Health and Human Services had promulgated: the rule which required them to pay for insurance coverage that included four particular types of contraception. They did NOT object to covering contraception in general – just to specific technologies which work by preventing implantation of a fertilized embryo. In their view, preventing implantation of a fertilized embryo is tantamount to abortion, and therefore the federal regulation was requiring them to pay for abortion.

These companies shared an important characteristic: they were all private, closely held corporations.

It’s probably not clear, immediately, why that matters.

We know from general legal principles, and because something called “the Dictionary Act” says so, that corporations are considered to be ‘persons’ or ‘people’ for the purposes of laws which use those terms. There are obvious limitations to this principle -  corporations cannot be imprisoned, and it’s hard to execute a corporation – but the general rule applies. It even applies for the purpose of the first amendment; corporations have speech and press rights just like any other person.

Of course, it’s very hard to conceptualize or explain how a corporation can ‘speak’; what does it mean for a corporation to have an opinion, let alone to utter one? There are ways around this – an official publication is a company speaking, as is a company filing a court document – but there are edge cases where it’s hard to establish.

It’s even harder to understand the concept of a corporation having religious beliefs. What does it mean for McDonald’s to have a religious belief? For WalMart or Target?

On the other hand, it’s easy to understand what it means for an individual to have a religious belief. Under the RFRA, if I honestly believed that some government regulation requires me to violate my religious beliefs, and I could convince a court that that violation imposed a burden on me, I would be entitled to an exemption unless the government could demonstrate both that it had a compelling interest and that its regulation was the least restrictive way to meet the compelling interest.

If I had a business which was personally owned and not incorporated, of course, that business would be entitled to the same exemption, because that business is simply me acting in certain realms.  If I run a bodega, say, and that bodega is a privately owned business which is never incorporated, everything that bodega does is me doing it, and if I have a right to an exemption, so too does that bodega.

So those are the two opposite poles in the description of the corporate world: the small sole proprietorship which is not incorporated, which is clearly entitled to exemptions under RFRA, and massive corporations like WalMart. It’s basically impossible to tell what WalMart is thinking or what its religious opinions are, and so as a result it probably can’t have an exemption under the RFRA, but where’s the line to be drawn?

One place to draw it would be incorporation – as soon as you file for limited liability status, you lose the right to exemptions of this sort. But on some level that’s bizarre; if I incorporate my hypothetical bodega, it’s still just me acting through the bodega, right?

The court is drawing a line in a particular place: a corporation which is PRIVATE (eg, not publically traded on the market) and CLOSELY HELD (eg, it has a small number of owners who are identifiable and whose views are identifiable), then the corporation is entitled to exemptions under the RFRA.  Otherwise, it isn’t clear (because the Supreme Court only addressed this specific case, and generally does not opine on cases not before it).

This is an important point: the result in today’s decision applies ONLY to private, closely held corporations. It does NOT apply to publically traded corporations, or to private corporations which are not closely held.

§ § §

So the first question is: is Hobby Lobby’s religious freedom intruded upon? The Supreme Court says ‘yes’: the owners of Hobby Lobby (and the other corporations) believe the four methods in question to be abortifacients. Assuming their beliefs are honestly and earnestly held, this is a severe intrusion on their religious freedom – they are being required, in their views, to pay for insurance coverage which allows the covered employees to commit murder. They are being required to pay directly for the availability of murder as an option for their employees.

This is a ridiculous framing for anyone who doesn’t think the contraceptive techniques in question are abortifacients, or for anyone who does not believe abortion is murder. But the fact that you or I might think something is ridiculous doesn’t matter; what matters, in the context of earnestly held religious beliefs, and the federal government’s deference to religious beliefs, is whether or not the person who claims the belief believes it. These people do, and so their religious freedom is infringed upon by a regulation requiring them to pay for these particular contraceptive techniques.

So the next question is: is the regulation in question in furtherance of a compelling state interest? The Supreme Court assumes that it is , and then moves on to the next question.

Is the means adopted – requiring Hobby Lobby to pay for insurance which covers the contraceptive techniques to which it objects – the least restrictive option?

The majority says no: it isn’t. There are ways the government could achieve the same ends that do not require this intrusion on Hobby Lobby’s religious freedom: it could pay for the insurance itself, or it could use the same system it uses for religiously objecting nonprofits (which basically transfers the cost to insurance companies).

§ § §

So, to summarize:
•    This ruling applies only to privately owned, closely held corporations
•    This ruling is intended to protect the religious rights of the owners of those corporations
•    This ruling is limited to sincerely held religious belifs
•    This ruling is SPECIFICALLY limited only to a small subset of contraceptive techniques rather than contraception in general

§ § §

So if all of that is true, why do I dislike this ruling?

The ruling establishes a rule: closely held privately owned corporations are entitled to an exemption from generally applicable regulations under the RFRA, just like individuals would be.

It applies that rule specifically to health insurance mandates.

So … what keeps it from applying in other cases? What keeps it from applying to a closely held privately owned corporation whose owners object to blood transfusions?

The majority opinion explicitly says the opinion doesn’t apply in that case. BUT it provides no real coherent explantion for WHY. It just asserts non application by fiat.

But the legal system works by analogy and by extension. Someone is going to try that extension, and that case is going to reach the Supreme Court, and flat declaration notwithstanding, there’s no logical explanation for why it won’t come out the same way.

Of course, this isn’t an objection to this decision, really; it’s an objection to the scope of the RFRA. Which means on some level I’m not saying the Supreme Court is wrong … I’m saying Congress passed a bad law and didn’t fully understand its scope and should be about fixing it. Unfortunately, I know it won’t.

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Hobby Lobby | 25 comments (25 topical, 0 hidden) | Trackback
'They are being required to pay directly' by ammoniacal (4.00 / 1) #1 Tue Jul 01, 2014 at 01:10:36 AM EST
Not sure that this is the case. Companies pay insurers, who in turn pay medical providers for the service. One more echelon of involvement than that of the harlot employee who writes a check to BIG HOSPITAL for her 'bortion. The Supremes let this faulty logic slip by, I'm afraid.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

yeah, by infinitera (4.00 / 1) #10 Tue Jul 01, 2014 at 11:04:58 AM EST
It's part of being insured as a woman. There are also several non-birth control reasons to need particular drugs covered.

Not sure what gives an employer the right to decide on the available treatment options for their employees, aside from our fucked up system of linking coverage to employer-subsidized group plans. Well, I guess that does.

[…] a professional layabout. Which I aspire to be, but am not yet. — CheeseburgerBrown

[ Parent ]
"self insure" by iGrrrl (4.00 / 1) #19 Thu Jul 03, 2014 at 12:12:58 AM EST
Many large companies use health insurance companies to administer the plan, but the company will pay the costs. It's referred to as 'self insurance'.

"Beautiful wine, talking of scattered everythings"
(and thanks to Scrymarch)

[ Parent ]
Thanks for the info. by ammoniacal (2.00 / 0) #20 Thu Jul 03, 2014 at 12:50:35 AM EST
I'd only seen that term applied to workers' compensation insurance here in WA.

"To this day that was the most bullshit caesar salad I have every experienced..." - triggerfinger

[ Parent ]
VS2FP by anonimouse (4.00 / 4) #2 Tue Jul 01, 2014 at 06:36:47 AM EST
 One of the more insightful articles we've had round here in living memory

Girls come and go but a mortgage is for 25 years -- JtL
why it won’t come out the same way by lm (4.00 / 1) #3 Tue Jul 01, 2014 at 06:52:00 AM EST
``So … what keeps it from applying in other cases? What keeps it from applying to a closely held privately owned corporation whose owners object to blood transfusions?

The majority opinion explicitly says the opinion doesn’t apply in that case. BUT it provides no real coherent explantion for WHY. It just asserts non application by fiat.''

I'm not sure that I buy that complaint with the ruling. The state will intervene if parents decline a blood transfusion for their children but not if parents decline many other medical treatments for their children.

I also can't help but wonder if there isn't space for a lawsuit brought forward by individuals to force employers to comply with the mandate. Since one is obligated to buy insurance and the state mandates that employers provide insurance, it seems hard to avoid the conclusion that the insurance provided by the employer should necessarily cover all medical conditions.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
or by StackyMcRacky (2.00 / 0) #5 Tue Jul 01, 2014 at 08:30:07 AM EST
what's stopping a majority of employees from suing management saying the company is infringing on their religious beliefs?  discrimination in the workplace, etc?

[ Parent ]
Mostly the same reason most employers didn't sue by lm (2.00 / 0) #8 Tue Jul 01, 2014 at 08:40:32 AM EST
In general, anyone can sue anyone for any reason. But for the most part people don't do that for a number of reasons, chief of which is that most people don't care enough to sue.

In the case of the ACA, most employers who provide insurance were already paying for plans that covered the contraceptives in question prior to the ACA requirements. Most of these will continue to do so. I don't see an avalanche of employers going for a faith based exception to the ACA.

Likewise, in the case of employees, I don't see many caring enough to sue, especially on religious grounds. So I highly doubt that there will be a surge of employee driven lawsuits.

I'm more curious about the prospects of a single lawsuit than what many people might due. Prior to the ACA, I think a lawsuit by an employee seeking contraception would have been a non-starter. But with the individual mandate, employees do not have a choice about getting insurance. So I think there may be space for a successful lawsuit there should anyone decide to sue.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Thank you! by clock (4.00 / 1) #4 Tue Jul 01, 2014 at 08:08:22 AM EST
I appreciate the effort you put I to these as it really helps me understand where the issue lies.


I agree with clock entirely --Kellnerin

My question... by miserere (2.00 / 0) #6 Tue Jul 01, 2014 at 08:30:48 AM EST
I think is in the same area as your objections to the decision. I find it very difficult to understand why certain forms of contraception are different from every other health care drug/device/procedure. The majority seems to be saying, "Regardless of the science of how these types of contraceptives actually work, we understand that you believe that they are evil. It's fine if you have made up a moral stance about these particular forms. Because these forms of contraception that you believe (no matter the legal or scientific definition of abortion, or the fact there is good scientific that IUDs more often prevent fertilization than prevent implantation) is an abortifacient is different. Because...."

And of course, those like me who are cynical and who consistently see these sorts of "because...." with regards to contraception, abortion, Planned Parenthood, or other sorts of women-centered care (and similarly, to gay and trans* issues), fill in that ellipsis with "Because....sex? vaginas? dirty sluts who want consequence-free sex?" It's hard, when the majority didn't say why these forms of contraception are different from a person's sincerely-held religious belief about, say, blood transfusions. It seems that the same argument regarding "least restrictive option."

I'm not saying that the decision said anything about women being second-class citizens. But I am saying that the way the decision has been described (I admit I haven't read the full description), it opens itself up to that interpretation by those who see this as part of a larger pattern. And my question is, simply, why would the majority come to this decision? What do you think is the logic behind it?

I don't think that the science is so doubtful by lm (2.00 / 0) #9 Tue Jul 01, 2014 at 09:16:38 AM EST
I've not studied the literature myself but a friend of mine has a discussion going on his Facebook page where some friends of his from the pharmaceutical industry are posting and the general consensus seems to be that virtually all hormonal forms of contraception make it more likely for implantation to fail should an egg happen to be fertilized. This is a secondary method of action and one that is not likely to happen but it can and does happen.

I think even your phrasing seems to go along with this, ``there is good scientific that IUDs more often prevent fertilization than prevent implantation.'' That fertilization is prevented more often than implantation is not the same statement as there being good evidence that these forms of contraception do not ever act as abortifacients.

I think that if one accepts that life begins at conception, that distinguishing between forms of birth control is a pretty reasonable stance. For full disclosure, I do not believe that life begins at conception. That is to say, I do not think that human being has a soul attached to it at the point where it is merely a fertilized egg. When the soul attaches, I couldn't tell you for certain. Certainly sometime before birth. It's a hard thing to pin down.

I do agree somewhat with your cynicism. But I think we should be careful to distinguish between those who have reasonable beliefs about some forms of birth control (e.g. the family that owns Hobby Lobby) and those that would reject all forms. One might even go far as to say that a deep rooted misogyny was behind the reasoning of some of the SCOTUS judges that sided with Hobby Lobby. Nevertheless, we should be careful. Just because there are some people like that doesn't mean that everyone that concurred with the SCOTUS decision is like that.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
implantation fails a pretty high percentage by the mariner (2.00 / 0) #12 Wed Jul 02, 2014 at 07:23:48 AM EST
of the time naturally anyway. that's a ridiculous standard of what constitutes an abortifacient.

[ Parent ]
I don't think the term is really the issue by lm (2.00 / 0) #16 Wed Jul 02, 2014 at 06:20:05 PM EST
At issue is whether the device/medicine makes implantation fail more often than it would otherwise all other things held equal.

The curious thing isn't so much why some contraceptives are held out as illegitimate to the Christian. The curious thing is why other issues (e.g. in vitro fertilization, heaving drinking during pregnancy) which also increase the likelihood of death of embryos aren't also brought up.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
no, they're both curious things. by the mariner (2.00 / 0) #17 Wed Jul 02, 2014 at 10:24:07 PM EST
if increasing the rate of implantation failure qualifies a medicine or device as an abortifacient, then those implantation failures are abortions. this is an insane idea.

the christian political stance re: contraception is completely incoherent nonsense.

[ Parent ]
Sounds like you have your mind made up by lm (2.00 / 0) #18 Wed Jul 02, 2014 at 11:30:56 PM EST
I don't personally agree with the position because I don't believe that life begins at conception. But I think that it is pretty coherent. If there is any contradiction, it's with the Catholics. The doctrine of the "double effect" means that if the primary intent is to prevent fertilization and the secondary effect of that is to cause an implantation to fail, the secondary effect cannot be attributed to the primary intent. But Protestants like the Greene family probably don't face that incoherency.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
I feel like this discussion by nathan (4.00 / 1) #21 Thu Jul 03, 2014 at 11:34:36 AM EST
Should conjure this link into being whenever it takes place. The truth is that what Anscombe calls "heathen" or "pagan" is the new normal, or if you prefer, there are two fundamentally incompatible value systems now uneasily and frictively coexisting in America and it's clear which one is going to win. Anscombe (1972):
In one word: Christianity taught that men ought to be as chaste as pagans thought honest women ought to be; the contraceptive morality teaches that women need to be as little chaste as pagans thought men need be.
Now, there's a lot to be said about the weaknesses and inconsistencies of particular people professing that chastity is a positive virtue, not merely a negative prudential practice under certain circumstances, but hey, at least it's an ethos. They aren't insincere and, pace my many furious friends, they're not primarily motivated by misogyny or whatever. Rather, they are among the last people around motivated, perhaps in a garbled or incompletely understood form, by an ideal that used to be much more widely held. Anscombe, writing 42 years ago, knew she was in the rearguard, so it's obvious what position the poor saps running Hobby Lobby are in.


[ Parent ]
Yes, thank you!! by StackyMcRacky (2.00 / 0) #7 Tue Jul 01, 2014 at 08:31:12 AM EST
I, too, really appreciate it!!

Alright, hypothetical question... by atreides (2.00 / 0) #11 Wed Jul 02, 2014 at 02:07:10 AM EST
Believe it or not, I have a bigger problem with their requirement that all employees submit to binding arbitration...

So, if someone who worked for them got one of these four forms of birth control, was refused by the insurer to cover it because of Hobby Lobby's stance, and decided to take it up with the company, they would have to go to an arbitrator, correct?

The arbitrator will probably side with Hobby Lobby, either because of their victory or because Hobby Lobby is paying their bill. Could the employee turn around and take the case back to court because they are now being denied their choice not by the government, a doctor, or the company with religious scruples, but by a third party?

I know there's a lot of things I haven't thought of with this, but completely hypothetically speaking, what would be your take on it?

He sails from world to world in a flying tomb, serving gods who eat hope.

arbitration by aphrael (2.00 / 0) #13 Wed Jul 02, 2014 at 01:00:50 PM EST
I loathe the Federal Arbitration Act with so much passion I don't think I can describe it.

The FAA was Congress saying: contract provisions requiring binding arbitration are just as valid as any other contract provision and shall not be treated less well in contract analysis than they would be.

The courts have perverted it into: binding arbitration provisions are more binding than other contract provisions and can only be overturned using this very stringent set of criteria which are not required for other attempts to invalidate contract provisions.

Anyhow, ranting aside, to your question.

> Could the employee turn around and take the case back to court because they are now being denied their choice not by the government, a doctor, or the company with religious scruples, but by a third party?

Absolutely not.

The arbitrator is charged with arbitrating disputes based on your contract. In order to sue the arbitrator for his decision, you'd have to be able to prove that his reading of the contract was so fundamentally unreasonable that no rational person could have thought it - and even then, thanks to the way the FAA is interpreted, you would just get arbitration via a different arbitrator.

If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Poopy. by atreides (2.00 / 0) #15 Wed Jul 02, 2014 at 05:39:26 PM EST
So do you think anyone is going to have the balls to try to assert that vaccination is against their religious principles?

He sails from world to world in a flying tomb, serving gods who eat hope.

[ Parent ]
This is quite useful, thanks by riceowlguy (4.00 / 1) #14 Wed Jul 02, 2014 at 02:23:34 PM EST
One thing that would be nice (from my perspective, since I'm tired of hearing "because we happen to believe in this particular set of moral values, and this particular set of moral values happens to be called 'religion' and not 'philosophy' or 'political leanings' or 'some batshit crazy stuff people made up 1000 years ago and has been passed down to me through generations of family indoctrination', you have to respect it" as an argument) is if some kind of "shenanigans clause" could be put into place.  Because, as plenty of people have now pointed out, for a "Christian" company, Hobby Lobby seems to do an awful lot of business with China.  You know, the country that practices forced abortion.  So, basically, if you claim you should be exempt from law x because of your deeply held religious beliefs, if it can be demonstrated that you are a huge goddamn hypocrite, you can bite the law's shiny metal ass.


And then they go and really fuck it up... by greyrat (2.00 / 0) #22 Fri Jul 04, 2014 at 01:17:45 PM EST
"SCOTUS commanded the appeals court to rehear [two] cases in light of the Hobby Lobby decision. In both instances the Sixth Circuit had rejected requests from Catholic-owned businesses that sought to exempt the companies from offering insurance that covered any of the 20 mandated forms of birth control. The Supreme Court also compelled the US Court of Appeals for the District of Columbia to reopen a similar case, Gilardi v. Department of Health & Human Services. "With Tuesday's orders," wrote The Nation's Zoë Carpenter, "the conservative majority has effectively endorsed the idea that religious objections to insurance that covers any form of preventative healthcare for women have merit.""

http://www.motherjones.com/politics/2014/07/supreme-court-scotus-hobby-lobby-all-forms-contraception

They also said by jimgon (2.00 / 0) #23 Fri Jul 04, 2014 at 03:58:46 PM EST
 That compabies seeking an exemption don't even have fill out the official form, but just submit "written notic."




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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
[ Parent ]
Seen an argument floating around by jimgon (2.00 / 0) #24 Thu Jul 10, 2014 at 06:04:31 AM EST
 The argument goes that SCOTUS just pierced the separation between corporation and owners in such a way that it could allow suit against owners for the behavior of the corporation. If the corporation can be said to have the beliefs of its owners then what if the corporation does something illegal? Is not acting on the beliefs of its owners?

Also it seems that they may have just equated a closely held corporation to a sole proprietorship or partnership which further erodes the separation.





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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
there are already situations by aphrael (2.00 / 0) #25 Thu Jul 10, 2014 at 02:34:19 PM EST
there are already situations in which the corporate veil can be pierced - mostly involving closely held corporations.

but i don't think this makes that more likely, because the entire point to the corporate form is limited liability. the court is not impugning limited liability here; it's saying that limited liability is an irrelevant question to whether or not the corporation can be inferred to have religious beliefs which are protected by the RFRA.
If television is a babysitter, the internet is a drunk librarian who won't shut up.

[ Parent ]
Hobby Lobby | 25 comments (25 topical, 0 hidden) | Trackback