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.

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 Ruth Bader Ginsburg’s dissent.

Page 8 of the dissent: The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure… In sum, with respect to free exercise claims no less than free speech claims, “[y]our right to swing your arms ends just where the other man’s nose begins.”

This is nonsense. “Corporations’ employees and covered dependents” have no legitimate interest in company-paid, or insurance-paid, contraceptives. This is the sort of thing that’s plainly user maintenance, and belongs in the pocket books of the user. Besides, as a practical matter, contraceptives just aren’t that expensive. Another aspect about this claim that fascinates me is a bit of history. It used to be the case that offering a dental plan or health coverage was a business competition matter in the market for quality employees. That got nearly completely morphed into a manufactured “right.” Now Justice Ginsburg is busily (and cynically, say I) attempting to manufacture a “right” to contraceptives paid for with OPM.

Contra Ginsburg’s other claim here, women are not prevented from exercising their own religious beliefs. They remain free to practice their beliefs, and as the separate matter that this truly is, they’re free to obtain the contraceptives of their choice. They just don’t get to force other people to pay for them, any more than, oh, let’s say, a Presbyterian gets to force a Lutheran to pay for the former’s church. As Ginsburg noted in the above excerpt, “[y]our right to swing your arms ends just where the other man’s nose begins.” That applies to both people’s arms.

Pages 19, 33-34: The Court’s determination that [the Religious Freedom Restoration Act] extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private….

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

I agree with Ginsburg’s argument on the extensibility of the exemption from closely held corporations to “corporations of any size, public or private,” and I hope she’s right. On what basis would a government claim that the owners of a closely held business, being small in number, have a legitimate claim on exercising their religious beliefs through their business, but the business owners of a large corporation (the shareowners of GM is one example bandied about in this context) must set aside their religious beliefs for the sacrilege of having bought shares in that company, or become partners in a large, interstate law firm?

On the potential for a variety of religious exemption claims, I certainly hope so—that’s what the Free Exercise is about: preventing government, especially, from dictating what a group’s religious beliefs must be, or how they must exercise those beliefs that are government-approved.

Pages 23-24: Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contraception coverage enables women to avoid the health problems unintended pregnancies may visit on them and their children.

Not at all. Eliminating the Contraceptive Mandate does not at all prevent women from getting the contraceptives of their choice (and so the actually rare health problems associated with pregnancies, unwanted or not). Women just won’t get to shift the cost of their choice—including their choice to use contraceptives at all—onto others.

Either we have Free Exercise, or we do not. There’s not much middle ground (there is some), but that middle assuredly cannot include government’s mandate that a man provide must for another that which his own religion bars him from providing to himself.