What to make of the ' Hobby Lobby' decision

"A great victory for religious liberty," "stunningly bad for women's health" and a "win-win." Take your pick; there is a wide range of opinion about the Supreme Court's decision in Burwell v. Hobby Lobby, Inc., 573 U.S. __, 2014 WL 2921709 (2014). A lot of the opinions miss the mark, so let me clear the air a bit.

The facts of the case are straightforward. The Affordable Care Act mandates certain employers' group health care plans furnish "preventive care and screenings" for women without "any cost sharing requirements."

The Department of Health and Human Services fleshed out the mandate by regulation. Among other items, plans must provide coverage for 20 contraceptive methods approved by the FDA. Four methods prevent an already fertilized egg from developing by inhibiting the egg's attachment to the uterus.

Three closely-held corporations objected to covering the four methods on the grounds the owners of the corporations believed life begins at conception and the methods violated their belief. The belief was sincere and derived from the owners' views of Christianity.

The corporations sued under a federal statute, the Religious Freedom Restoration Act of 1993, and the Free Exercise Clause of the First Amendment. The Supreme Court held the regulation, as applied to the three corporations and corporations similarly situated, violated the statute but passed on the constitutional claim.

The basis for the holding leads to my first observation. To those who think the decision represents bad public policy: Amend the statute in a way to overrule the decision. The Democrats in the Senate tried to do that last month. Unfortunately, they could not muster the votes to break another Republican filibuster. Look for the issue to pop up on the campaign trail.

Ironically, Congress intended RFRA to reverse a Free Exercise decision, Employment Div., Dep't of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

The plaintiffs in Smith were Native Americans who smoked peyote as part of their religion. Their employer fired them over their use of the drug. Oregon denied them unemployment benefits, deeming the use "misconduct." State law banned the smoking of peyote by all.

Before 1990, a government rule that substantially burdened the exercise of religion had to pass strict scrutiny. Justice Scalia, writing for the majority in Smith, foresaw "anarchy" in the working of this standard. Therefore, he watered down the standard to permit burdens so long as the rule was of general application. Never mind society had functioned for 29 years under the stiffer standard.

All sorts of groups, including the ACLU, protested Smith. In short order Congress overwhelmingly passed RFRA.

On its face RFRA restores strict scrutiny, requiring a rule that substantially burdens the exercise of religion (1) to further "a compelling governmental interest" and (2) be "the least restrictive means of furthering that" interest.

I say on its face because, judging by Hobby Lobby, the courts may not engage in much analysis applying the law to the relevant facts.

The Supreme Court accepted without questioning the corporations' assertion the regulation substantially burdened the owners' exercise of religion, that burden being measured by the penalties the corporations (not the owners) would pay for not providing coverage. The Supreme Court also "assumed" the government's interest in providing access to the four methods was compelling. It then ruled the government could further the interest by less restrictive means.

The Supreme Court did not define a closely-held corporation and did not indicate whether federal or state law would control. Expect further litigation on this point.

Guess who joined the majority? Justice Scalia. I guess the threat of anarchy has receded greatly since 1990. And guess who is lamenting the decision? The ACLU.

RFRA does not apply to the states, City of Boerne v. Flores, 521 U.S. 507 (1997). Consequently, New York's requirement that an employer's health plan cover contraception if the plan covers other prescription drugs is still good law after Hobby Lobby. Twenty-seven other states have similar laws and they too are safe.

The Supreme Court went out of its way to limit the decision to the facts before it. Other required health services and non-discrimination laws may withstand challenge under RFRA, it assured would-be critics. However, the brevity of the legal analysis may have the opposite effect, encouraging litigants to apply the decision to new fact patterns. We shall see.

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Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.

Published: Thu, Aug 07, 2014

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