March 24, 2014

5 questions about the Hobby Lobby case and contraceptive coverage

Hobby Lobby is a plaintiff in a case before the Supreme Court challenging the health care law's requirement that employees' coverage include contraception services.
Credit: Tony Gutierrez/Associated Press

The Supreme Court will hear arguments on Tuesday in two related cases which involve a challenge to regulations in the Affordable Care Act that require many employers to include free coverage of contraceptive services in their employees’ health insurance plans. These cases – Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius –  should not be confused with court challenges to the contraceptive mandate by religiously affiliated nonprofits, which also may soon be reviewed by the Supreme Court.

Here are five questions that explain what these cases are about and why they are important:

How did the cases arise?

The owners of both companies  are devout Christians who oppose abortion and do not want to provide their employees with emergency contraception because they believe such methods often destroy embryos. The Affordable Care Act exempts churches and provides religiously affiliated nonprofits, such as hospitals and charities, with an alternative mechanism for ensuring that their employees are covered. But those accommodations do not extend to for-profit employers who may also have religious objections to artificial birth control. The owners of a number of these businesses sued the federal government, claiming that the Religious Freedom Restoration Act (RFRA) entitles them to be exempted  from the mandate. 

What is RFRA, and why is it so important?

RFRA was passed by Congress in 1993 in response to a 1990 Supreme Court decision, Employment Division v. Smith, which made it more difficult for individuals and groups to get exemptions from laws and government actions that may burden religious practice. Prior to the decision, the government needed to prove it had a “compelling interest” (e.g., protecting public safety) in applying a law that burdened someone’s religious practice. After Smith, the government only needed to show that it had a “legitimate interest” which is a much less rigorous standard. The 6-3 Smith decision prompted an outcry from religious groups and others, who claimed that the ruling would essentially gut religious liberty protections contained in the First Amendment. Congress responded by passing RFRA, which restored the tougher, pre-Smith (“compelling interest”) standard in cases where someone’s religious rights have been “substantially burdened.” But while RFRA applies to religious groups and individuals, it is unclear whether its protections extend to for-profit businesses.

What arguments do Hobby Lobby and Conestoga make?

The companies claim that RFRA protects the religious liberty of for-profit businesses. To begin with, they say, Congress did not explicitly exclude businesses from coverage when it passed RFRA in 1993. Indeed, the statute claims to cover “persons,” a word courts usually interpret to include nonprofit and for-profit entities as well as individuals. Hobby Lobby and Conestoga also argue that the contraception mandate imposes a “substantial burden” on their free exercise of religion by forcing them to provide a service deemed sinful in their faith tradition.  Finally, the companies say, the contraception mandate cannot possibly advance a “compelling” public policy interest because the government already has exempted thousands of religious groups and others from the mandate.

What arguments does the government make?

The government counters that RFRA does not protect for-profit corporations such as Hobby Lobby and Conestoga because there is no indication that Congress intended the statute to cover for-profit businesses, nor is there any tradition of courts extending religious liberty protections to businesses or their owners. Even if RFRA does apply, the government contends, the contraception mandate does not rise to the level of being a “substantial religious burden” because the companies are significantly removed from an employee’s decision to use contraception. And, even if the mandate does constitute a “substantial burden” on some employers, the government argues that it also advances a “compelling” interest because it is part of a comprehensive reform of the nation’s health care system.

What might be the broad significance of this case?

If the government prevails because the court rules that RFRA does not apply to businesses, the decision would immediately end all religious liberty-based challenges to the contraception mandate by for-profit entities as well as other RFRA-based challenges by businesses.  At the same time, if the court rules that RFRA does apply to businesses but that the mandate either doesn’t substantially burden their religious rights or that the government has a compelling interest in applying the law, it would likely bode ill for upcoming legal challenges to the mandate by religious nonprofits. However, if the court rules in favor of Hobby Lobby and Conestoga, the decision would likely open the door for businesses to invoke RFRA in a wide range of challenges to federal laws. For instance, a decision in favor of Hobby Lobby and Conestoga might give for-profit employers a strong legal foundation to raise religious objections to hiring gays and lesbians or to providing the same-sex spouses of employees with the same benefits extended to opposite-sex spouses. Such a decision also would almost certainly mean that nonprofits would be fully exempt from the mandate.

Topics: Health Care, Religion and Government

  1. Photo of David Masci

    is a Senior Researcher at the Pew Research Center’s Religion & Public Life Project.

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39 Comments

  1. Teresa Lucas4 weeks ago

    As a crafter, smocker, needlepointer, seamstress, and artist who once spent lots of $ at Hobby Lobby, I will no longer shop there but turn to on-line shopping. Hobby Lobby is a store where I rarely see men shopping. They have relatively few male employees. The owners seem to have overlooked their customer base. Now, if Lowes or Pep Boys had taken the same stance on contraception, things might be very different.
    Notice how I haven’t even mentioned the fact that HL has about 90% of products made in China on it’s shelves, a country that has forced birth control on its citizens for the past 20 years or so. They had no religious qualms about doing business and profiting mightily from China. What hypocrites!
    Boycott Hobby Lobby!

    Reply
  2. Karen Hargus4 months ago

    Religious people should live out their faith – doing what they believe is right and not doing what they believe is wrong – but trying to force others to adhere to their beliefs is a different kettle of fish altogether. The dragging of politics and laws into religion is just beyond me. Down through the centuries, through all nations and religious beliefs, it has resulted in war and bloodshed. This is not my definition of faith. Do what you think is right. Do not do what you think is wrong. Do not call in the police, the National Guard, or the Supreme Court. “Render unto God what is God’s” (spirituality) – “Render unto Caesar what is Ceasar’s” (laws and rulership).

    Reply
    1. Mel – Houston1 month ago

      You’d think that would be common sense or be able to pass the Self Test. If you don’t someone else tell you how to live don’t tell him how to live. Pretty simple!

      Reply
  3. Carolyn4 months ago

    The government only says that the company has to provide insurance (more than 50 employees). The insurance company packages their product to include contraception (and prostate exams). This would all go away if the insurance company sold a package without contraception included, and no one would have their religious rights infringed upon.

    Reply
  4. Jason Brand4 months ago

    Wasn’t RFRA declared unconstitutional in 1996 by SCOTUS?

    Reply
  5. Norm4 months ago

    If corporations are to be granted religious rights as granted to individuals…perhaps corporations should pay taxes in the same manner (rate) as do individuals.

    Reply
    1. slk4 months ago

      bingo!!! eliminate the loopholes!!! how about a flat tax!!!

      Reply
  6. William C Crain4 months ago

    The Bible is not a Health manual… this is just more religious bromide an nostrum acting as a lightening rod for filling the coffers of the superstitious sycophants.
    The Gubmint’s quite within it’s realm to not make exceptions to health care law.

    Reply
    1. slk4 months ago

      due to the high cost of electricity, the light at the end of your tunnel, has been turned off!!!

      Reply
  7. Linda4 months ago

    Hobby Lobby needs to be Free of Gov. control of their business. Obama care has taken the Freedom from our once great nation.

    Reply
    1. slk4 months ago

      with the power of the vote, we can bring it back!!!

      Reply
  8. Frank4 months ago

    Many women need contraceptives for health reasons unrelated to abortion. Where are they represented in this discussion. No business is forced to provide any product or service it does not believe in for whatever reason. Those owners can choose something else to offer that does not offend their scruples.

    Reply
    1. Ray4 months ago

      “No business is forced to provide any product or service it does not believe in for whatever reason. ” Perhaps you should tell Barry about this so Hobby Lobby and the Little Sisters, et al, will not need to go to the SCOTUS to be able to enjoy this Constitutional right.

      Reply
  9. Millie Suske Sell4 months ago

    “Congress shall make no law. . .” Why have supporters of the Constitution allowed Obamacare to get to this point? Does anybody remember why the Tea Party group formed? The issue is freedom, freedom from taxation without representation. It’s a tax. It’s a huge tax, levied without representation.

    Reply
    1. slk4 months ago

      that has been changed donzens of times already!!!

      Reply
    2. MsColleen4 months ago

      The ONLY people who can claim to be taxed without representation are the people of the District of Columbia. EVERYONE else has two senators and a congressman. Including Tea Party members.

      Reply
  10. KheSanh_vet4 months ago

    Health insurance is not something which is generally paid for, gratis, by an employer except in those realms where collective bargaining, and hence ‘health insurance’ do not exist. Health insurance is generally a ‘benefit’ for which employees and employers bargain in good faith. So, if Hobby Lobby is so upset, let them cancel ALL their employee health insurance and we shall see how many of their folks still wish to man the registers. Up un til this stink I shopped there 3-5 times a year but now I have not even entered their parking lot to turn around … nor will I, ever.

    Reply
    1. Barbara4 months ago

      I’m with you. Hobby Lobby needs to stick to selling their goods. I used to shop there periodically, but will never enter those stores.

      Reply
      1. Ray4 months ago

        WOW! They will probably lose sleep for months.

        Reply
        1. JP3 months ago

          Wow. First corporations could vote; then they held religious beliefs; now they suffer from insomnia? Next, we’ll learn that they do the nefarious things they do because of childhood abuse at the hands of their parent corporations…

          Reply
    2. Ray4 months ago

      Before our Big Uncle inserted itself into redefining our remaining arena of religious liberties, I had never been in a Hobby Lobby store. I will now search them out for my purchases as I did Chick Fillet a few months ago.

      Reply
      1. MsColleen4 months ago

        What religious liberties have YOU had curtailed? Are you not allowed to attend church? Are you not allowed to hate people in the name of your religion?

        I’m still unclear what religious liberties any single religious person has lost under this administration.

        Reply
    3. Millie Suske Sell4 months ago

      KheSanh_vet and Barbara: You do not understand the issue. Or maybe you do very well understand how to manipulate the uninformed masses. Maybe Hobby Lobby should cancel all their employee health insurance and pay the cost of insurance to the employees in wages so they can buy their own insurance. But why should they? “Congress shall make no law . . . ” It’s freedom of RELIGION, freedom from taxation without representation, in the end, it’s freedom of CHOICE.

      Reply
      1. slk4 months ago

        bingo!!!

        Reply
      2. Bill R.4 months ago

        In what way is this “taxation without representation”?

        As to the specifics, insurance is a bet you want to lose; it is not an endorsement of the outcome. A company offering life insurance isn’t fibrillating or taking a stand on the death of its employees.

        Reply
  11. carrie964 months ago

    Caw- most contraceptives are not abortion. Hobby Lobby already provides several contraceptive options to its employees. The problem is contraceptives like the day after pill or the week after pill that effectively kill a fertilized egg. For those who view life starting at fertilization these pills cause the death of a child.
    Religious beliefs aside the government should not be able to control the type of health coverage employers must provide. If an employee does not like their health coverage they have several options such as buying their own, going without or working somewhere else. Our nation was better off when people took responsibility for themselves. People who want contraceptives should provide their own. If that is not an option either don’t have sex or find a clinic that gives out condoms.

    Reply
    1. Charles Freeman4 months ago

      The woman’s choice to use a contraceptive or abort the fetus is still none of the concern of the employer, and remains part of obligatory medical insurance regardless of anyone else’s opinion based on philosophy, religion, mythology, or ideology. The use of such medically valid options is the choice of the employee. If employers could dictate medical processes available to employees, a Scientologist who operates a business might refuse to offer medical insurance for any type of counseling or psychotherapy. A number of Christian sects actually do object to various medical options for preventing or curing many human illnesses. It’s really time to halt the encroachment of religion into the well-being of Americans.

      Reply
      1. Cas4 months ago

        Yes. It is non of the employers business until they have to PAY for it. Then technically, it IS their business. In the employers eyes, paying for those types of contraceptive is condoning something they don’t believe in and find reprehensible.

        Would you want to be forced to pay for something you find morally wrong?

        Reply
        1. Ray4 months ago

          Isn’t all this controversy a result of one dippy college student demanding taxpayers pay for protection for her phenomenal numbers of sexual encounters?
          Why, I must inquire, didn’t (doesn’t) she ask her partners to provide their own condoms?

          Reply
          1. MsColleen4 months ago

            Pew, how did this comment make it to view. It is a personal attack against a woman that completely distorts her position and slanders her character.

    2. slk4 months ago

      26 they provide, and 4 they don’t want to!!! but liberals/socialists/communists will only focus on the “4″!!!

      Reply
  12. caw4 months ago

    What the employers don’t understand is that contraceptives and abortion are two completely different things. Regardless, these companies are full of BS. Their religious beliefs have no bearing on health related concerns or their employees.

    Reply
    1. Ryan Warnick4 months ago

      I respectfully disagree. So called “emergency contraceptives” function by causing an already fertilized egg (embryo) to either not attach to the uterine wall or miscarry. This intentional intervention can easily be considered an abortion. These employers are well within their rights, as citizens of a country that was founded upon freedom to worship and freedom to express opinions, to voice their displeasure with a government that is attempting to compel them to provide a service to their employees that is, in their opinion, grossly immoral. While I don’t agree with your opinion, I absolutely respect your right to have an opinion and to voice it. Let’s all elevate the dialogue and work towards finding solutions that don’t leave one side of every argument feeling unheard or invalidated.

      Reply
      1. Ack Ack Ack4 months ago

        I respectfully disagree. “Emergency contraceptives” function by delaying ovulation. My source is science.

        Reply
        1. Ryan Warnick4 months ago

          Sorce: ScienceFriday, Emergency Contraceptives: How They Work.

          “The copper IUD is the most effective emergency contraceptive method by far, with a failure rate of less than one per thousand; the extremely high efficacy of the IUD used as EC suggests that it does have the ability to inhibit implantation.”

          Reply
          1. Ack Ack Ack4 months ago

            From the same source:

            “Finally, the most effective (but least-used) emergency contraceptive option is the copper IUD…”

            From wikipedia entry on “IUD with copper” (see for sources):

            “Although not a primary mechanism of action, some experts in human reproduction believe there is sufficient evidence to suggest that IUDs with copper can disrupt implantation,[32] especially when used for emergency contraception.[33][1] Despite this, there has been no definitive evidence that IUD users have higher rates of embryonic loss than women not using contraception.[29] Therefore, the copper IUD is considered to be a true contraceptive and not an abortifacient.”

            Also, from the Science Friday source:

            “The women who took EC on the day of ovulation or after became pregnant at the rate that would be expected if they hadn’t used any contraception. This provides compelling evidence that levonorgestrel EC works by inhibiting or delaying ovulation, but is ineffective after ovulation has already occurred (and therefore would not be effective in preventing the implantation of a fertilized egg).”

            RU-486 also prevents ovulation.

            I appreciate your elevation of the discussion and hope this new information helps inform your opinion. But you know what the irony in all this? Two of the four “abortifacients” that are in dispute were actually offered by Hobby Lobby up until 2012, about the time of the politicization of this entire ordeal.

      2. slk4 months ago

        easy, let their boyfriends pay, or at least chip in!!!

        Reply
        1. MLP4 months ago

          This borders on hate speech. Your implication is that all women who use contraceptives are unmarried and having “sex” that is not condoned in religious circles. NOT So! Many women are in oppressive marriages where bearing another child would put them even more at the mercy of their oppressor. Contraceptives allow a woman the freedom to choose if and when she will bear children.

          Reply
          1. slk4 months ago

            unfortunately for you, thats your opinion!!! i’ll change “boyfriend” to “male partner”, but you’ll scream hate anyway!!! “oppressive marriages”??? why didn’t you run, when you got the first hint he was an idiot!!! and since there are more unmarried couples the married ones, i was still on target!!! oppressive marriages, are you’re fault for staying!!! why do men get married, and hope she never changes, and women always want their men to change??? again, be picky, and if he’s an idiot, use your legs to run…fast!!!