Â The Supreme Court waited until the last day of its term to issue its highly anticipated opinion inÂ Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties.
The narrow 5-4 decision negates the â€ścontraceptive mandateâ€ť of the Health and Human Services (HHS) regulations issued to implement the Affordable Care Act (i.e., Obamacare). Heretofore, these regulations required the owners of so-called â€śclosely heldâ€ť business enterprises to include insurance coverage for abortion-inducing drugs and devices even when that kind of coverage violated their religious convictions. The holding is an important victory for religious liberty and a blow to pro-choice advocates who painted opposition to the mandate as a womenâ€™s rights issue.
Justice Samuel Alito delivered the opinion of the high court with his usual clarity. The courtâ€™s majority relied upon the Religious Freedom Restoration Act (RFRA) which Congress passed in 1993 and whichÂ President ClintonÂ signed into law. The RFRA requires the Supreme Court to use a particular three-point approach to religious liberty cases involving the federal government. If federal governmental action: 1) substantially burdens the free exercise of religions; 2) and its purpose is not compelling or; 3) if it fails to use the least restrictive means to its end, then the RFRA brands it illegal. Justice Alitoâ€™s opinion worked its way through the requirements of the RFRA.
The court first found that the federal contraceptive mandate imposed a â€śsubstantial burdenâ€ť on the religious exercise of the two families, the Hahns and the Greens, owners of the companies in question. If they refused to comply with the HHS contraceptive fiat, they faced fines for â€śas much as $1.3 million per day, or about $475 million per year.â€ť It was either pay up or forfeit oneâ€™s religious beliefs. Alito said: â€śIf these consequences do not amount to a substantial burden, it is hard to see what would.â€ť
Next, the court assumed without deciding that the government may have had a â€ścompelling interestâ€ť in issuing the regulations. It stresses that it was â€śunnecessary to adjudicate this issue.â€ť
Thirdly, since the federal government had â€śalready devised and implemented a system that seeks to respect the religious liberty of religious non-profit corporations while insuring employee access to contraceptives,â€ť President Obama and his HHS had a â€śless restrictive meansâ€ť of achieving their end but they failed to make it available toÂ for-profitÂ enterprises owned and operated by persons with religious convictions. Therefore, said the majority, â€śThe contraceptive mandate, as applied to closely held corporations, violates the RFRA.â€ť
Justice Alito cogently refutes one of the central claims of the governmentâ€™s opposition to Hobby Lobby and Conestoga. That assertion was thatÂ corporationsÂ do not have free exercise of religion rights. First, Alito explained that the language of the RFRA refers to the religious liberty of â€śpersonsâ€ť being protected from federal proscription. Federal law unambiguously includes â€ścorporationsâ€ť in the definition of â€śpersons.â€ť Secondly, â€śprotecting the free exercise rights of corporations like Hobby Lobby, [and] Conestoga â€¦ protects the religious liberty of the humans who own and control these companies.â€ť
AlitoÂ recognizes what the legal brief for the Hahns so strikingly set out:
“Whatever the legal status of their organizations, owners and operators, do not check their beliefs at the door eachÂ MondayÂ morning. They live their faith throughout the work week. Hence it is the Hahnsâ€™ religious beliefs that prevent Conestoga from providing drugs and services that end a newly formed human life. There is no separating the two.”
Are there limits to this decision? Yes.
First, the court states that â€śwe have no occasion in these cases to consider the RFRAâ€™s applicability toâ€ť publicly traded companies. However, limiting the decision to the facts of the caseâ€”that is, one involving closely held corporationsâ€”is not unusual. It is part of normal judicial restraint.
Secondly, this decision has to do withÂ federalÂ governmental action. Unfortunately, religious liberty is also being restricted byÂ stateÂ governmental action. There, litigants must depend on their own state constitutions or state RFRAs for protection.
The high court waited until the final day of its term to issue this extremely important decision.Â Burwell v. Hobby Lobby Stores and Conestoga Wood SpecialtiesÂ will not be forgotten anytime soon.
Dr. John A. Sparks is the retired dean of the Calderwood School of Arts & Letters, Grove City College, Grove City, Pa., and teaches constitutional history and business Law on a part-time basis. He is a member of the State Bars of Michigan and Pennsylvania and is a fellow for educational policy forÂ The Center for Vision & Values at Grove City College.
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