The Hobby Lobby Case: Good News, Not Great News

Many religious folk have been rejoicing at the Supreme Court’s recent 5-4 decision in Burwell v. Hobby Lobby, the case concerning the Obama Administration’s attempt to force Hobby Lobby and other religious businesses to pay for contraceptive and abortifacient drugs for their employees under Obamacare. The Court held that the Obamacare regulation forcing business owners to provide insurance coverage for drugs that prevent a fertilized ovum from implanting in the uterine wall, thus inducing an abortion, seriously burdens the right of those owners to practice their religions. Because this mandate was not the least restrictive means of achieving what it assumed is the “compelling governmental interest” in providing cost free access to contraceptive and abortifactient drugs, the Court held it violates the rights of religious business owners set out in the Religious Freedom Restoration Act.

This is good news, of course, as it prevents the government from forcing religious business owners to choose between funding abortifacients and cutting off all health benefits to their employees (or pay crippling fines). But we should not lose sight of just how narrow and limited the ruling really is. First of all, there is nothing in this decision that goes to the Constitutional right to free exercise of religion.  The decision was written in terms of the Religious Freedom Restoration Act (RFRA)—Congressional legislation, not the Constitution. And the Court has specifically stated that RFRA rights go beyond those provided in the Constitution itself, so Congress could overturn the decision at any time by changing the statute.

This is not to say that there is not much to praise in the Hobby Lobby decision, at least against the backdrop of today’s ethically- and textually-challenged constitutional jurisprudence. The Court held that forcing business owners to fund purchase of abortifacient drugs when they sincerely believe that to do so is forbidden by their religion, in fact, imposes a substantial burden on owners’ religious free exercise. The Court also held that corporate businesses have rights in the limited sense that they should be treated as persons representing the rights of their owners, hence capable of having representative rights, including a right to the free exercise of religion.

That said, the Court made this determination in regard to only a specific type of “closely held” corporation. These smaller corporations generally are family owned businesses, “shares” of which are not generally available for sale or purchase, but only held by a very small group. General Motors and other large corporations receive no protection from this decision, regardless of the religious beliefs of any or even all of the thousands of owners of their stock.

In addition, the federal government can still provide the free abortifacient coverage for which the Obama Administration yearns by paying for it with tax money taken from all of us via a national plan. Alternatively, according to the Court, the Administration may extend the exemption it already provides to non-profit corporations with religious objections to paying for abortifacient drugs. That is, through new regulations, the Administration could make insurance issuers or administrator expressly exclude contraceptive and abortifacient coverage from the group health insurance plan. The issuer would then have to pay for abortifacient reimbursements out of more general group funds, with no money coming directly from the plan, its participants or beneficiaries. In essence, all of us would, again, pay the cost through increases in general premiums.

Clearly, then, this decision, while better than the alternative for the cause of religious free exercise, is of extremely limited effect. It protects only closely held corporations which otherwise would be subject to the Contraception Mandate from specifically covering abortifacients, and only under RFRA. The federal government could change RFRA, or change the Obamacare program to cover the abortifacients from taxpayer dollars, or from generalized insurance dollars. Socialized medicine continues to be institutionalized, and will, when complete, include taxpayer-funded abortions. No abortions will be prevented or substantially impeded by this decision. And we are no closer to having a meaningful public discussion regarding the federal government’s right to impose its pro-abortion agenda.

In truth, the real revolutionary decision would have been one not upholding Hobby Lobby’s rights. As shown by the arguments of Obama’s lawyers and the dissenting Justices, such a decision would have crippled any opposition to federal legislation intended to impose a particular moral vision on the nation as a whole. It would have meant that no corporations other than those specifically authorized as “not-for-profit” would be seen as representing the rights of their owners. As a result, companies seeking to operate in the marketplace, making and selling goods, would be treated as if they existed only to make money. Yet another part of our public life would be roped off against “intrusion” by people’s deepest beliefs and morally-driven conduct. Not only would such companies have no right to represent the religious free exercise rights of their owners, they also would be made liable to all kinds of additional governmental restrictions and even shareholder lawsuits objecting to their “economically inefficient” decisions to, for example, assist local charities and/or install “excess” anti-pollution equipment.

The dissent’s argument also would have dismissed as unimportant business owners’ very claim to being morally implicated in the makeup of the health insurance they provide. That is, because employees might not choose to take advantage of the free abortifacient coverage, business owners would be denied the right to claim that their religion forbade them from offering to pay for it—and actually paying for it, should the employee choose the abortifacient. The government, then, would become the sole arbiter of the proper relationship between religious belief and ethical conduct. We already have gone far down this road through various Court decisions upholding the right of the government to tax and spend for essentially any purpose, with citizens having essentially no right to object. To extend this logic to the realm of employer-financed employee benefits would be to make a mockery of claims to religious toleration, let alone free exercise.

There can and should be some movement coming out of this decision for smaller, closely held corporations to make clear their religious standards and beliefs. One hopes that statements of religious principles in corporate bylaws, charters, and policies might protect the religious free exercise of important institutions and groups in our nation against radical programs like “free abortifacients for all.” It also might cause some owners to be more explicit and active in promoting policies rooted in religious faith and tradition.  Nonetheless, we should not hope for any pause in the movement to silence religious dissent from contemporary, radical moral visions. We continue to live under a brutish and ham-fisted legal culture, in which one extreme ideological position so dominates that we are expected to simply nod our agreement when told that religious rights are “opposed to” the rights of women—including many millions of religious women and unborn female children, many of them “chosen” for abortion only because they are female.

The Hobby Lobby decision may mark the beginning of a more assertive religious point of view, defending our right to be who we are in our public and economic lives. But it will be at most a beginning in a long series of battles that show no signs of ending anytime soon.

Editor’s note: This column first appeared July 1, 2014 in Imaginative Conservative and is reprinted with permission.

Bruce Frohnen

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Bruce Frohnen is Professor of Law at the Ohio Northern University College of Law. He is also a senior fellow at the Russell Kirk Center and author of many books including The New Communitarians and the Crisis of Modern Liberalism, and the editor of Rethinking Rights (with Ken Grasso), and The American Republic: Primary Source. His most recent book (with the late George Carey) is Constitutional Morality and the Rise of Quasi-Law (Harvard, 2016).

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