Ayesha N. Khan is Legal Director of Americans United for Separation of Church and State. She served as lead counsel for the plaintiffs in Town of Greece, filed an amicus brief in support of the government in Hobby Lobby, and represents female students defending the ACA regulations’ accommodation for religious non-profits against a challenge brought by the University of Notre Dame.

Introduction

This morning, the Supreme Court handed down its decision in Burwell v. Hobby Lobby, ruling five to four that for-profit corporations need not comply with regulations, enacted pursuant to the Affordable Care Act, that require large employers to include contraceptives among the battery of preventive services that are covered by employer-issued health-insurance plans.  In the Court’s view, the contraceptive-coverage requirement imposes a “substantial burden” on “religious exercise,” does so through means that are not the “least restrictive,” and thus cannot withstand scrutiny under the Religious Freedom Restoration Act.

Most readers of this blog, like me, are probably not in the least bit surprised by the decision. In fact, I was able to write virtually all of this column before the decision even came down because the Court has, in the main, become a largely political, deeply polarized, and highly predictable institution. Sure, the vote by Chief Justice John Roberts to uphold the Affordable Care Act’s individual mandate in National Federation of Independent Businesses v. Sebelius was surprising – but it was hardly an unmitigated victory for ACA supporters: by gutting Congress’s commerce-clause power, his decision stands to reverberate in ways that will make conservatives swoon.  For the most part, the Court has cleaved five to four on virtually all of the cases that were fought on the battleground of the social and cultural issues of our time.

Hobby Lobby, however, threatens to deal a more decisive blow to the Court’s credibility than the typical five-four decision.  I say that for two reasons.  First, the decision was issued over the dissent of all of the Court’s female and Jewish Justices.  Second, the decision comes on the heels of Town of Greece v. Galloway, in which the Court approved a town board’s practice of opening its meetings with almost exclusively Christian prayers.  In both cases, the majority paved the way for conservative Christians to override the interests of women or religious minorities – and the line-up of the Justices reflected that same divide.  The demographics are far too stark to go unnoticed.  At a minimum, they raise the question whether we are seeing the rise of a Court in which gender and religion are the elephants in the room.

Options for for-profit companies

So let’s take a look at the issues in Hobby Lobby.  How do the ACA and relevant implementing regulations work?  Congress enacted the ACA to “increase the number of Americans covered by health insurance and decrease the cost of health care.” The Act requires employers with at least fifty employees either to provide minimally adequate health insurance to their employees, including coverage for preventive care without cost-sharing, or to pay a tax of $2,000 per employee (after the first thirty employees) to defray the cost of public subsidization of the employees’ healthcare.  As the Fourth Circuit put it in Liberty University, Inc. v. Lew, the ACA “leaves large employers with a choice for complying with the law—provide adequate, affordable health coverage to employees or pay a tax.”

As has been pointed out on this blog before, because the tax is far lower than the typical cost of providing insurance in the first place, choosing to pay the tax actually would yield substantial savings to employers. And if employers are concerned that dropping their health insurance would put them at a disadvantage with regard to competing employers, nothing would preclude them from passing on their savings to employees in the form of health-care stipends or increased salaries.

Given the availability of this option, it cannot reasonably be said that the regulatory scheme forces, or substantially pressures, for-profit companies to pursue a course of action that violates their religious beliefs – which, as the Court has said again (Wisconsin v. Yoder) and again (Braunfeld v. Brown) is what they are required to show in order to prevail in a claim of this kind.  The availability of this off-ramp was of considerable interest to the Justices during the oral argument in Hobby Lobby, but the Court gave this option the back hand in this morning’s decision.

The Court noted that the argument was made not by the government, but only by amici, and that it generally does not consider such arguments.  Nevertheless, the Court went on to assert that it was not clear whether the net cost of dropping insurance would be greater than the cost of paying the tax.  But a RFRA claimant, not the government, has the obligation to show that a burden under RFRA is substantial.  The proper action for the Court to take with such a scant record on the question should have been to rule against Hobby Lobby, or at least to remand for further factual development.

Idiosyncratic scrutiny

The Court likewise pooh-poohed the United States’ argument that, even if the companies were forced to retain their health-insurance plans, Hobby Lobby’s claim should still fail because the challenged regulations withstand strict scrutiny.  Providing women with access to contraceptives reduces unintended pregnancies and, in turn, the need for abortions; ensures that female employees do not face substantially higher costs than their male counterparts in meeting healthcare needs; and, at bottom, equips women with the tools to decide whether and when to become parents and, in turn, to participate equally in society. And I’m not just saying that; the data bear it out.

The majority ignored the fact – didn’t even mention! – that the United States has a much higher rate of unintended pregnancy than other developed nations, accounting for nearly half of all pregnancies in the nation. Likewise unmentioned was the staggering fact that, when faced with an unintended pregnancy, forty-two percent of women choose to have an abortion.  The other fifty-eight percent of women carry the unintended pregnancy to term, increasing their risk of low-weight and pre-term births for infants, depression and domestic abuse for mothers, as well as other negative consequences.  In contrast, “[w]omen who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.”

Making contraceptives more accessible, and available free of charge, to all women would have a dramatic impact on this dynamic.  Myriad behavioral-economics and public-health studies demonstrate that even exceedingly low barriers – whether financial or logistical – can deter people from accessing benefits and services.  When it comes to preventive health care – whether it is getting a flu shot, taking a diagnostic test, or using contraception – cost and convenience matter a lot. One study showed that when condom prices rose from zero to a mere twenty-five cents, sales declined by a whopping ninety-eight percent. The same result holds when the barrier is logistical rather than financial.  Dispensing contraceptives for three months, rather than an entire year, at one time, resulted in a thirty-percent greater chance of unintended pregnancy, and a forty-six-percent greater chance of obtaining an abortion.

The results are greatest when both financial and logistical barriers are removed. Making the most convenient forms of contraception – those requiring the least effort to maintain – available at no cost to young women resulted in a staggering eighty-percent drop in the pregnancy rate, leading researchers to predict that the ACA’s contraceptive-coverage regulations could “prevent[ ] as many as 41-71% of abortions performed annually in the United States.”

In light of this social-science data, the government rightly concluded that its goals could not be accomplished by relying on women’s ability to stroll down to their local pharmacy to purchase contraceptives on their own time and dime; rather, the government needed to eliminate not just financial, but logistical, barriers to contraceptive access – and it thus wisely relied on women’s existing healthcare plans and providers.

But none of that mattered to the Court. While the Court assumed for the sake of argument that the government’s interest here was compelling, four of the five members of the majority expressed reservations about whether that interest was indeed compelling. The majority concluded that the government had not satisfied RFRA’s “least restrictive means” requirement. The majority treated the accommodation the government provided to religious non-profits as a less-restrictive alternative, but at the same time four of the five Justices in the majority refused to confirm the legality of that exemption, even though it is challenged in numerous pending lawsuits.  The majority also said that another less-restrictive alternative would be for the government to provide the contraceptive coverage itself, even though Justice Kennedy (the fifth Justice in the majority) seemed quite skeptical of this point, and even though forcing women to obtain contraceptives through a new governmental program separate from their insurance could serve as a formidable barrier to contraceptive access.

What Establishment Clause?

The purposes behind the regulations highlight yet another reason that Hobby Lobby’s argument should fail.  As Justice Kagan observed during the oral argument, and as Justice Ginsburg recognized in her dissent, the Establishment Clause precludes the award of religious exemptions that override other significant interests (Cutter v. Wilkinson) or impose burdens on third parties (Estate of Thornton v. Caldor, Inc.).  Yet these for-profit companies have been allowed to use their religion as a trump card to override the interests of literally thousands of female employees in receiving insurance coverage for contraceptives, and in turn, in participating equally in society.

The same disregard for those at the receiving end of dominant theology was present in Town of Greece, where the gang of five had little sympathy for religious minorities and nonbelievers who sought to participate in their local council meetings without being asked to stand or bow their heads in recognition of the divinity of Jesus Christ.  I question whether these Justices would have ruled as they did if they were Jews barraged by yuletide cheer every holiday season.

Conclusion

So now let’s circle back to where I started.  Hard decisions always involve balancing acts, and the Court offered scant explanation for why the religious views of the ten individual plaintiffs in the two consolidated cases should override the interests of thousands of female employees in gaining control of their reproductive capacities and, in turn, in participating as equal members of society – especially when the regulatory regime gives the companies an easy way out.  We’ll never know for sure whether religion or gender played a role in the Justices’ votes, but anyone who reads today’s decision is left to wonder.

Posted in Burwell v. Hobby Lobby Stores, Contraceptive mandate symposium, Merits Cases

Recommended Citation: Ayesha Khan, Hobby Lobby Symposium: Your God is bigger than my God, SCOTUSblog (Jun. 30, 2014, 5:46 PM), http://www.scotusblog.com/2014/06/hobby-lobby-symposium-your-god-is-bigger-than-my-god/