I’m riffing here and in a nearby post on The Wall Street Journal Law Blog‘s excerpts of a couple of opinions from this week’s Supreme Court Hobby Lobby decision. That decision can be seen here.
The excerpts in this post are from Justice Samuel Alito’s opinion for the court.
Page 2: Under [the Religious Freedom Restoration Act], a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways Congress or HHS could equally insure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, all FDA-approved contraceptives.
There are a couple of false premises here, or seem to be. I’m having a discussion with an actual lawyer (guess whose argument will prevail…) on whether Justice Alito is accepting the premise of a compelling interest arguendo or in fact. Assuming I’m right (arguendo), then Alito’s argument that government has any interest at all in “insuring that every woman has cost-free access…,” or any interest at all in insuring that any person has cost-free access… is false.
The additional false premise is that government can provide anything for free: those things government mandates be “free” to any individual, in fact, cannot be free—they’re just paid for by someone else. That a thing is free to the nominal…obtainer…is a non sequitur.
Page 3: In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage,
My comments here are tangential to Alito’s purpose in bringing this into the opinion; I’m commenting on the bare remarks. The decision to provide or not to provide “access to all FDA-approved contraceptives” must be a business decision in the freely competitive market for labor, not at all a government (political or judicial) decision.
Regarding the exemption for purely religious organizations (someone other than the religious organization pays for that aspect of a health plan, not the religious organization itself), the argument misses the point entirely. Who pays for the contraceptive coverage is not the problem; the problem is that being required to be a party to the provision at all is the violation of the entity’s religious tenets.
The distinction is made clearer in the next excerpt [emphasis mine]:
Page 32: As we have noted, the Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges…may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.
If the Hahns and Greens and their companies do not yield to this demand, the economic consequences will be severe. If the companies continue to offer group health plans that do not cover the contraceptives at issue, they will be taxed $100 per day for each affected individual…. For Hobby Lobby, the bill could amount to $1.3 million per day or about $475 million per year; for Conestoga, the assessment could be $90,000 per day or $33 million per year; and for Mardel, it could be $40,000 per day or about $15 million per year. These sums are surely substantial.
Some argue that the ruling is too narrow because the opinion limits the illegitimacy of the contraceptive mandate to closely help companies with only a few owners. I agree; see my discussion of this in my riff on Justice Ruth Bader Ginsburg’s excerpted opinion nearby.
Where I part company with them is in their tacit conclusion that this is the end of the matter. I think this is just a first step on a short path (if time consuming to traverse) to fully restoring the Free Exercise Clause. The short list of business owners of a closely held company will be expanded to include all owners of companies of any size.
