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Hobby Lobby Opinion Strikes Down ACA (Obamacare) Birth Control Mandate for Some (Opinion link)

Hobby Lobby Opinion Strikes Down ACA (Obamacare) Birth Control Mandate for Some (Opinion link)

Justice Alito has authored the Court's opinion, affirming the decision below, meaning that Hobby Lobby does not have to provide insurance covering the forms of birth control to which it objects or pay fines under the ACA. Whether this will allow broader attacks on the ACA (Obamacare) remains to be seen as we analyze the opinion this morning. According to the Court, its opinion applies to closely-held corporations, which do have religious freedom rights.

The Court's 5-4 decision (Alito-Roberts-Kennedy-Scalia-Thomas v. Breyer, Ginsburg, Kagan, Sotomayor),  is heavily qualified, stating that it does not mean that other types of medical care, like vaccinations, can necessarily be excluded on a religious objection. A concurring opinion by Justice Kennedy states that the government can simply pay for the coverage if Hobby Lobby won't, meaning that women may not face any gap in coverage if the government decides to do that. Yet another qualification makes clear that publicly-traded companies are not (necessarily) going to be treated the same way.

The Court also indicates that it will not allow employers to "cloak" discrimination as religious practice, but it does not indicate how it will tell when that is occurring. The opinion appears to suggest that, if, for example, a business attempted to discriminate against gay employees on religious grounds, RFRA would not protect them from suit (where such claims are cognizable).

The dissent by Justice Ginsburg explains that the majority is extending RFRA far beyond what the First Amendment requires, in terms of allowing religion-based exemptions from the law:

The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommodations so extreme, for our decisions leave no doubt on that score. See infra, at 6–8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 1993 (RFRA), 42 U. S. C. §2000bb et seq., dictated the extraordinary religion-based ex emptions today’s decision endorses. In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.

Justice Ginsburg's dissent also pointed out that other exemptions from the law, such as refusing to hire unmarried women without the permission of their father, or refusing to hire women who co-habitate outside of marriage have also been sought by religious groups. How will the Court handle those challenges under the strengthened interpretation of RFRA?

Justice Kennedy's concurrence, as expected, attempts to steer down the middle, stating:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Government has designed, identified, and used for circumstances closely parallel to those presented here. RFRA requires the Government to use this less restrictive means. As the Court explains, this existing model, designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise.

Perhaps the most interesting twist in the majority opinion is when the Court indicated that Hobby Lobby's option of dropping coverage altogether was not really a fair option because Hobby Lobby asserted it had religious reasons for providing health insurance:

Even if we were to reach this argument, we would find it unpersuasive. As an initial matter, it entirely ignores the fact that the Hahns and Greens and their companies havereligious reasons for providing health-insurance coverage for their employees.

That is where Hobby Lobby got the Court coming and going -- they have to be allowed to provide health insurance, because of their religious faith and they have to be allowed to exclude treatments from that coverage that they don't believe in, also because of their religious faith. Accordingly, there may now be an entire industry of religiously-compliant health insurance policies and let the buyer beware.

As indicated above, the Hobby Lobby opinion is heavily qualified and it make take many more decisions in the lower courts to determine what it means, but in the short run, the government can be assured that many, many, more religious-based challenges to the Affordable Care Act will be the result of today's decision.

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