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Hobby Lobby wins in 5-4 decision over Obamacare contraception mandate

Hobby Lobby wins in 5-4 decision over Obamacare contraception mandate

No contraception mandate for closely held corporations.

Note: this post has been updated.

The Supreme Court just handed down a decision in the blockbuster Burwell v. Hobby Lobby case, setting new–if narrow–precedent governing how much control government has over religious exercise in America.

In a 5-4 decision, the Court ruled that a closely held corporation cannot be required to provide contraception coverage. Justice Alito, writing for the majority, said that the government failed to show that the mandate is the least restrictive means of advancing its interest in guaranteeing cost-free access to birth control.

The Government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., as-sume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with re-ligious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing in-surance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests.

The government argued that the owners of companies like Hobby Lobby should not be able to sue as individuals over this mandate, because the Obamacare regulations apply to the actual companies only. However, The Religious Freedom Restoration Act of 1993 (RFRA) affords extremely broad protections to the officers, employees, and shareholders associated with corporations. Justice Alito makes a point to shed light on the impossible decision the Obama Administration feels comfortable forcing business owners to make: give up the right to defend your religious liberty, or forego the benefits of operating as a corporation.

In his concurrence, Justice Kennedy remarked that the government itself could ensure women receive free birth control–by placing the burden on the taxpayers as opposed to forcing coverage via mandate.

Presented this past march, the Hobby Lobby parties asked the Court to determine whether or not the government can use the Obamacare mandate to force privately owned corporations –in this case, Hobby Lobby and Christian bookstore chain Mardel–to provide their employees with contraception over the objections of corporations’ owners. The respondents (the Green family, who owns both Hobby Lobby and Mardel) argued that the Religious Freedom Restoration Act allows them to offer insurance to their employees that specifically excludes contraceptives and abortifacients. However, the Affordable Care Act’s provisions as written require company policies to cover–at no cost to the insured–“preventative care” services and contraception, or else face heavy fines.

It’s important to note that the decision is narrow, and specifically addresses the contraception mandate:

This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance coverage mandates dates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.

The left’s reaction this morning has been predictable:

National Review’s Deroy Murdock revealed an inconvenient truth regarding the left’s hyperventilation over the Hobby Lobby holding. As it turns out, Hobby Lobby’s health care plan has always provided copay-free access to 16 different categories of contraception:

Male condoms
Female condoms
Diaphragms with spermicide
Sponges with spermicide
Cervical caps with spermicide
Spermicide alone
Birth-control pills with estrogen and progestin (“Combined Pill)
Birth-control pills with progestin alone (“The Mini Pill)
Birth control pills (extended/continuous use)
Contraceptive patches
Contraceptive rings
Progestin injections
Implantable rods
Female sterilization surgeries
Female sterilization implants

On the other hand, Hobby Lobby’s plan declines coverage to just four categories of contraception:

Plan B (“The Morning After Pill”)
Ella (a similar type of “emergency contraception”)
Copper Intra-Uterine Device
IUD with progestin

The real cause of progressive America’s mass hysteria? The idea that a corporation owned by a devoutly religious family would dare to ask its employees to purchase their own abortifacients.

The contraception mandate as passed disabled religious freedom in America. Obama Administration officials crafted it knowing that if upheld, it would force business owners to submit to yet another big government mandate, or suffer severe financial penalties–possibly in the millions of dollars. The Hobby Lobby ruling won’t fix every threat to free exercise, but it’s a start; and when dealing with this Administration, any progress should be celebrated as a win for the Constitution.


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This is a big loss for the left! It has nothing to do with birth control and everything to do with using government force to make people who own companies violate their religious beliefs.

Not A Member of Any Organized Political | June 30, 2014 at 11:01 am

And That’s A Good Thing!

nordic_prince | June 30, 2014 at 11:13 am

It’s a Good Thing that 5 out of 9 justices sided with the First Amendment.

What’s troubling, though, is that 4 justices have so little regard for religious freedom and/or freedom of conscience.

    RandomOpinion in reply to nordic_prince. | June 30, 2014 at 2:25 pm

    I find this quote from the dissenting opinion very disturbing:

    “In a decision of startling breadth, the Court holds that
    commercial enterprises, including corporations, along with
    partnerships and sole proprietorships, can opt out of any
    law (saving only tax laws) they judge incompatible with
    their sincerely held religious beliefs.”

    Glancing through the the Court’s Opinion and the opinions of people much smarter than myself, this doesn’t seem to be the case at all. It seems this decision was very very narrow not of “startling breadth” as Justice Ginsberg calls it. How can she be a Supreme Court Justice?

      Sanddog in reply to RandomOpinion. | June 30, 2014 at 9:15 pm

      None of them have ever built a company from the ground up. They have no idea how little distance there is between the company and the owners in case of privately held corporations. They really see them as a separate entity, far, far divorced from the owners who put their blood, sweat and tears into that company.

    you should read the dissenting opinions of Sotomeyer and Kagan. Those women should not be in the USSC because they have limited ability when it comes to such matters that involve your Constitution.

    I found some information written by Eugene Volokh where he is dissecting the opinions given.

    The Kagan and Sotomeyer opinions indicate that these two women have a limited ability to do any reasoning.

    I am a woman and yes I have religious beliefs too. In my country if you want to use contraceptives then you pay for your own prescription. Under our benefits scheme though, you only pay up to a certain amount (which is really a co-payment). I definitely do not believe that we should be paying for women to have abortions, and I do not believe that we should be paying for people to have IVF treatments. If you want it, you pay for it yourself. I could argue the whole on religious grounds, but I think it is enough that such procedures are a burden on taxpayers.

Every conservative family should immediately form a family corporation for administering the family’s financial affairs. that way, the two opinions issued today both apply.

When I first had insurance, neither glasses nor dentistry were covered. Glasses were covered, and prices went up very quickly, and immediately. Then dentistry was covered, with the same result.

Contraception is old technology, with nothing new in the last twenty years. Watch what happens, next.

    Radegunda in reply to Valerie. | June 30, 2014 at 12:09 pm

    When I first went to my current dentist years ago and pulled out my checkbook after the appointment, the receptionist quoted a lower price than the one I had been given before the appointment.

    It baffles me that so many people don’t understand that funneling an expense through an insurance process makes the cost higher. Risk-sharing has been turned into a broader form of cost-sharing, and many people think it means “somebody else will pay for me.”

    Expanding insurance into broad (and inflated) cost-sharing, including modest and predictable expenses, doesn’t make sense unless you expect (or hope) that your own expenses will add up to more than those of most others in the scheme. This isn’t the same as actual insurance, where you have no such expectation but you know it’s a possibility.

    stevewhitemd in reply to Valerie. | June 30, 2014 at 12:12 pm

    Imagine what auto insurance would cost if it included oil changes.

    And car payments. We’d all want a Lexus, of course.

    This reason alone should be enough to oppose the mandate.

    Eventually it has been the other way around for us. However, with regard to glasses, there are new lenses that cost a lot more to purchase.

    Here in Australia we have such chains as Specsavers and a few others. You can get single lenses glasses at the price agreed between the company and the insurer, however, you end up paying extra for the bifocal and the multifocal lenses. I just paid $130 extra for my new lenses and that is ok. The frames were discounted so that the fund paid out big on the lens. Why was I prepared to do this? It is a new type of lens that should help with an issue that I have in regard to focus. The fund pays up to $250 per year for the member to get new glasses.

    Also with dental we pay the difference. Our funds do not pay for pharmaceutical unless they are not covered by government list and only the difference between what we have paid and the co-payment.

TeacherinTejas | June 30, 2014 at 11:44 am

On a slightly different tangent, but still on the same track. I’m looking forward to the first Muslim bakery to refuse to bake a cake for a gay wedding. Pass the popcorn as millions of liberals’ heads explode.

    Spiny Norman in reply to TeacherinTejas. | June 30, 2014 at 11:51 am

    Not likely to happen. Gay activists may behave as over-indulged, petulant children, but they still want to keep their heads attached to their necks.

    stevewhitemd in reply to TeacherinTejas. | June 30, 2014 at 12:14 pm

    That question was posed in the comments at Instapundit as well. Interesting that so many of us use that exact example.

    If were sufficiently wealthy, connected, devious and in the political world (but I repeat myself repeatedly), I think I’d find a good, humble, decent Muslim baker and offer him a deal 🙂

    What if I was a wedding photographer and I only wanted to cover Orthodox Jewish weddings where Jewish law is not in fact violated (no mixed dancing – and by the way, limiting the separation to dancing is a lenient position as far our beliefs go)?

    For that matter, wedding musicians are typically Yeshiva boys, and many I’m sure would take such a position.

    At the very least, I personally would have a hard time covering an intermarriage and under no circumstances would I walk into a Church sanctuary.

    Are we going to outlaw the profession?

      Milhouse in reply to mzk. | July 1, 2014 at 3:30 pm

      Well, if you only covered one specific kind of wedding, you’d probably be OK. But if you covered all kinds of marriages between Jews or between non-Jews, but refused to cover an intermarriage, that would probably be illegal in New Mexico. Sometimes you just have to break the law. Thank God that in America such occasions are few and far between; until recently there were places where people’s conscience made them break the law on a daily basis.

      You probably recall a few years ago when B&H got in trouble with the DOJ for obeying the Jewish law that requires Jews to give preference in employment to their fellow Jews. Obeying God’s command to “let your brother live with you” is illegal in the USA. You just have to ignore the law and hope not to get caught.

    Milhouse in reply to TeacherinTejas. | July 1, 2014 at 3:23 pm

    I don’t understand why so many people on the right imagine that a Moslem bakery would have been treated any differently. Lefties don’t like Moslems any more than they like Christians or Jews. They only get excited about Moslems when it provides them with an excuse to denounce America, Christians, or Jews. Moslems are an “oppressed minority” on their list, but only barely so; just as a Hispanic man who kills a black man in self defense suddenly becomes “white Hispanic” and fair game, so too a Moslem who discriminated against gays would suddenly find himself a “white Moslem” and fair game.

nordic_prince | June 30, 2014 at 11:49 am

I just wonder if the statement “Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice” is directed towards the florists, bakers, photographers, et al, who object to being forced to participate in homosexual “marriage” ceremonies by providing their services, on pain of punishment. That issue is yet another example of callous disregard for the First Amendment.

    Spiny Norman in reply to nordic_prince. | June 30, 2014 at 11:52 am

    That’s how I read it.

    I hope it refers to white supremacists. Unfortunately, local judges will take it your way.

    I see my religion once again being forced into a grey-market position, where we cannot obey the law and rely on a state or locality being willing to look the other way. (All of the Yeshivas in Czarist Russia were in fact operating illegally, as was support for the community in Jerusalem.)

    My high school, by the way, did not ban homosexual teachers (in secular studies, as long as they were quiet about it) but did ban heterosexual ones – that is, women.

      Milhouse in reply to mzk. | July 1, 2014 at 3:34 pm

      A religious school is, by definition, exempt from all federal anti-discrimination laws. See Mount Tabor. State laws are another matter; it depends whether the law includes such an exemption.

    Milhouse in reply to nordic_prince. | July 1, 2014 at 3:32 pm

    No, it can’t possibly be directed at them, becuase there is no federal law against anti-gay discrimination. Your imagination is just running wild with no facts.

Here’s the Court’s briefest summation. “For all these reasons [pp 16-31], we hold that a federal regulation’s restriction on the activities of a for-profit closely held corporation must comply with RFRA.” At page 31.

The Court’s own term – “for-profit closely held corporation” – is a very broad class. In fact, if the corporation in question is not required to register its securities (e.g., stocks, bonds) with the SEC, thereby removing itself from being closely-held, then that corporation should fit the Court’s desriptor. We shall see, but this opinion may be quite powerful for the side of freedom from government.

    stevewhitemd in reply to pfg. | June 30, 2014 at 12:15 pm

    So a proprietorship or partnership qualifies and a publicly-held corporation doesn’t, I take it. What about a privately held corporation?

    mzk in reply to pfg. | June 30, 2014 at 1:10 pm

    I don’t see it. If it has 100 owners, all with 1%, it is not closely held. I suspect they there is already legislation, regulation, or case law discussing this.

    The idea is – is the corporation really an individual (or small set thereof) with a legal covering.

    Makes me think of the old British ruling that a corporation cannot be charged with treason because it has no soul.

Nice sign. Does it also apply to sharia? (Yeah, I think we all know the answer to that.)

stevewhitemd | June 30, 2014 at 12:16 pm

Also posted by me at Instapundit: the AP spin (up on their website now!) on Hobby Lobby of course is that women are being denied “high effective” contraceptives, such as IUDs, that may cost up to $1,000.

A high effective oral contraceptive is about $120 a year. One does have to remember to take it daily, of course. But even $1,000 a year for an IUD is $80 a month — that’s a dozen Starbucks coffees these days.

So once again we’re playing the “war on women” meme: apparently you are at war on women if you don’t endorse first dollar coverage of outpatient medications that you could clearly afford yourself.

    Radegunda in reply to stevewhitemd. | June 30, 2014 at 12:58 pm

    Who does the AP think is really paying that $1,000 (plus the additional administrative cost that’s tacked on) when it goes through insurance? The cost is being paid by the women and men who are receiving that insurance as part of their employment compensation.

    So here’s my simple solution: Ladies, there’s obviously a man involved in your need for contraception, so why not tell him he’s got to pay half the cost, or else no action?

    I’ve already heard a Dem-leftist objection to that idea: “Well, the woman may not know the man well enough to be comfortable asking that.”

    I kid you not. I really did hear that.

      nordic_prince in reply to Radegunda. | June 30, 2014 at 8:52 pm

      “Well, the woman may not know the man well enough to be comfortable asking that.”

      Seriously? I can understand a prostitute making that argument. But any other woman….

kenoshamarge | June 30, 2014 at 12:20 pm

No one is taking away a woman’s right to contraception – just the right to force someone else to pay for it.

Wow, the prog drones sure are gnashing their teeth over this one! Sandra Fluke and her ilk are all over twitter crying that evil conservative corporations are denying them their right to birth control!!

Birth control pills cost $8 a month.

I wonder how much Sandra and her merry band of prog-fem minions spend every month on cell phones, shoes, booze, etc?

    Milhouse in reply to Paul. | July 1, 2014 at 3:37 pm

    But Hobby Lobby has no objection to the Pill, and their insurance already pays for it.

Here’s my ‘cup half full’ thinking-

Again, like with Heller v D.C., we see that we are a mere 1 vote from abolishing the Constitution.

Further, as you can see by the reaction of the left (burn down Hobby Lobby), we are a mere conservative USSC ruling or two away from anarchy.

The Democrat arguments on this subject are flat-out INSANE: that women are being “denied access” to contraceptives if they don’t get them at other people’s expense; that employers are “imposing their religious beliefs” on employees if the latter need to pay for routine, modest expenses out of their paychecks; that it’s “discrimination against women just because of their ovaries” if employers don’t provide “free” contraceptives of every kind.

Do they really believe that lunacy? If they do, they should agree that I’m being “denied access” to food and shelter because I have to pay for those things myself, and the cost adds up to vastly more than contraception.

Maybe they do hold that belief at some level; I remember leftists claiming it was “censorship” if some pseudo-artist didn’t get a tax-funded grant.

But the hysteria surrounding the contraception / abortifacient issue is surreal. Would the Dem-leftists be so insanely, zealously insistent on “coverage” for any other particular aspect of health care? I really doubt it.

    Browndog in reply to Radegunda. | June 30, 2014 at 1:02 pm

    Same deal with the private healthcare workers/union decision.


    These people are brain dead zombies being pushed by the left…into anarchy.


A ray of hope!

“The long night of fascism always seems to be falling across America – and always lands in Europe” – didn’t count on fascism from the Left.

    Fascism has always been of the left… it is to the right of Left of Centre… There is little difference between fascism and communism since both are expressions of the socialist ideal.

      Milhouse in reply to Aussie. | July 1, 2014 at 3:39 pm

      No, fascism is not to the right of left of centre; it’s not to the right of anything. Mussolini was one of Europe’s leading Marxist intellectuals before WW1, and fascism is a Marxist heresy.

I look at this decision as another blow for the hard working tax payer. The Government ( the people) will now be picking up the tab for women’s contraceptives at Hobby Lobby and other closely held corporations. Another win for corporations with the little man paying the bill! We need to get corporations and employers out of the health care business and let folks buy their own insurance plans that best suits their needs.

    if the women want to be town bikes then they can pay for their own contraception and not expect others to pay for it. That is really a very simple proposition.

    The women need to cease acting like harlots and start being a little bit more circumspect about their moral behaviour.

    Milhouse in reply to HLGW60. | July 1, 2014 at 3:42 pm

    No one forces the government to pick up the tab. If it chooses to do so, the taxpayer’s remedy is to elect a different government.