Blog No. 42. Contraceptive Confusion: The Puzzlements of Hobby Lobby and Wheaton

On June 30, The Supreme Court issued an opinion in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius (collectively Hobby Lobby) invalidating regulations under the Affordable Care Act (ACA) that require that insurance provided by employers cover a broad range of contraceptive medications and devices. The employers in each case objected to coverage for four specific types of contraceptives that they consider to be abortifacients, i.e., causing an abortion. The employers claimed that the requirement to provide that coverage infringed their rights under the Religious Freedom Restoration Act (RFRA). A five-justice majority of the Court agreed in an opinion by Justice Alito. The immediate controversy over the decision was quickly heightened when, three days later,the Court entered a preliminary stay in Wheaton College v. Burwell relieving Wheaton, a Christian college, of complying with an alternative procedure that the Court had appeared to endorse in Hobby Lobby.

In Blog No. 22, “Obamacare and Contraception: Science, Freedom of Religion and Politics,” posted on December 8, 2013, we indicated our support for access to contraception and government programs that provide or facilitate such access; at the same time, we acknowledged having some sympathy for claims of religious liberty. The Blog went on to analyze the legal issues in Hobby Lobby but did not predict or advocate a particular result. Similarly, in this blog, we will not undertake to attack or defend the arguments of either Justice Alito’s majority opinion or the dissents by Justices Ginsburg and Breyer in Hobby Lobby, or the per curiam order (not signed by any individual justices) in Wheaton and Justice Sotomayor’s dissent from the order. Rather, the effort will be simply to point out, and perhaps illumine, some of the puzzlements left by the Court. (If, dear readers, you find some of the sledding here a bit tough, I can only promise you that it is easier than reading the decisions of the Court). Finally, of course, we’ll add a brief word about the political implications of the decisions.

What Did the Court Hold in Hobby Lobby and Wheaton?

Hobby Lobby. In striking down the regulations at issue, the majority of five justices held that:

1. RFRA protects the religious liberty of the owners of a corporation operated for profit that is closely held (has a small number of shareholders);
2. The contraceptive requirement of the ACA placed a substantial burden on the exercise of religion by the corporations’ owners;
3. The regulations may be assumed to serve a compelling governmental interest in making contraceptives available without cost, but that the interest could be served by means that were less intrusive on the employers’ religious freedom by either a) providing contraceptives directly at government expense, or b) providing contraceptives by the employers’ insurers at no cost to the employers in accordance with an alternate procedure that the ACA regulations had devised for non-profit religious organizations.

Wheaton College. Wheaton objected to complying with the alternate procedure that the Court had appeared to endorse in Hobby Lobby. The Court had described the application of the alternate procedure in Hobby Lobby:

Under that accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”

That “accommodation,” the Court concluded, “does not impinge on the plaintiffs’ religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS’s stated interests equally well.” (Under the regulations, the costs to insurers of providing the coverage would be offset by lower cost from fewer pregnancies or a reduction in fees paid to insurance exchanges.)

Wheaton College, however, objected that making the required certification would itself trigger the provision of the very contraceptive coverage by the insurer that it found offensive to its religious beliefs. Faced with that objection, the Court fashioned something of a compromise. Pending a resolution of Wheaton’s claim on the merits, the Court held that the college need not file the form of certification required by the regulations and that the college’s previous notification of its religious objections would suffice as a notice to the government of its objections. The brief two-page per curiam order provoked a lengthy and vigorous dissent by Justice Sotomayor joined by the other two women justices, Ginsburg and Kagan. (It is not clear how Justice Breyer voted).

Just why the Wheaton order amounted to a compromise was explained by Tom Goldstein in SCOTUSblog.com.   http://www.scotusblog.com/2014/07/where-was-justice-breyer-in-the-wheaton-college-fight/ (Tom is a cofounder of SCOTUSblog. Many other distinguished lawyers and journalists contribute to the blog and it is an invaluable source of opinion and data about the Supreme Court). Tom’s explanation of Wheaton

Formally, Wheaton College sought and received an injunction. But, as a practical matter, it got much less than it wanted because of the accompanying language in the order. Wheaton wanted to be able to refrain from taking any step that would facilitate free contraception for its faculty or students. But the Court’s order states unequivocally that the government can require Wheaton to provide it with notice of its religious affiliation and can on that basis ensure that the same coverage is provided. In other words, the injunction merely frees Wheaton from filling out the government’s “Form 700,” but it still requires Wheaton to accomplish the same result by an arguably less onerous means.  

The Puzzlements

1.) Were the claims of the employers, and the opinion of the Court, in Hobby Lobby, based on a misunderstanding of the relevant science? If so, does it matter?

In Blog 22, we noted that Physicians for Reproductive Health (“Physicians”) had filed an amicus curiae (friend of the court) brief arguing at length that in fact the contraceptive methods complained of were not, as the employers claimed, abortifacients. The opinion in Hobby Lobby was criticized by some as based on an assumption contrary to the consensus of scientific opinion. For example, a column in The Los Angeles Times by Robin Abcarian, “The craziest thing about the Supreme Court’s Hobby Lobby decision,” argued that the employers’ belief was simply not a scientific truth. At a more scholarly level, Cornell Professor Michael Dorf considered at some length whether, or to what extent, “religious claimants are entitled to rely on empirically false propositions to ground their legal claims to exceptions.” The empirical falsity of the employers’ claims, however, is not clear.

Justice Alito addressed the issue briefly:

As we have noted, the [employers] 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, see Brief for HHS in No. 13–354, at 9, n.4, may result in the destruction of an embryo. By requiring the employer to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.

 The footnote referenced by Justice Alito cited FDA-approved product labels that the Physicians’ amicus brief had described as outdated and not reflective of current research. Nevertheless, even the Physicians conceded that, while the methods complained of operated principally to prevent fertilization, at least one method, insertion of a copper IUD, may prevent a fertilized egg (embryo) from being implanted in the uterus, thereby resulting in its destruction. While the Physicians’ amicus brief argued that, according to medical literature, pregnancy (and hence the possibility of an abortion) does not occur until after implantation, that definitional understanding should probably not be seen to control the employer’s religious beliefs.

Moreover, the distinction between contraceptives and abortifacients seems unlikely to be significant in future cases. Within a few days after the Hobby Lobby decision, the Court denied certiorari in three cases wherein courts of appeals had upheld objections by employers to all forms of contraception. (At the same time, the Court remanded for reconsideration, in light of Hobby Lobby, three cases in which employers who objected to all forms of contraception had been denied any relief.)

2.) Did the order in Wheaton conflict with the decision in Hobby Lobby?

Justice Sotomayor and her colleagues Ginsburg and Kagan certainly saw a conflict and Sotomayor’s dissent said so in no uncertain terms:

Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now… retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution.

The per curiam order of the majority made no attempt to respond to that (or any other) argument made by Justice Sotomayor. In Hobby Lobby, the court had left itself an escape hatch by cautioning that “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims,” and cited the pending claim in Little Sisters. That caveat, however, hardly sufficed to explain what struck not only the dissenters but many observers, as a rather abrupt about-face.

If there is not a real conflict, it is perhaps because, as Tom Goldstein has suggested, the majority believed that the difference between filing a form and providing another form of notice “is material in terms of the entity’s religious objections, but is not material in terms of whether the coverage is available.” Nevertheless, the majority had to know that, at a minimum, its Wheaton order would cause confusion among the public and, no doubt, much of the bar.

3. Will women be denied access to contraceptives without cost as a result of the Hobby Lobby decision and the Wheaton injunction?

Probably not, at least in the case of women employed by the for-profit corporations covered by the Hobby Lobby decision. The majority opinion in that case clearly assumed they would not be denied such access. On the other hand, the complexity of the regulatory scheme under the ACA means that applying the alternate procedure to for-profits is not a slam dunk. For example, an article in The New York Times on July 4, “Obama Weighs Steps to Cover Contraception,” http://www.nytimes.com/2014/07/05/us/politics/obama-weighs-steps-to-cover-contraception.html?emc=eta1 outlined some of the administrative difficulties confronting the Administration in attempting to implement the Court’s decision. One curious aspect of the decision in Hobby Lobby is that neither party had urged the application of the alternate procedure or briefed it. The Court could have remanded the case to the lower courts for consideration of the issue, or at least asked the parties for briefing and argument, but it did neither. Consequently, the Court was on its own in deciding that the procedure was not only sound in theory but feasible in practice. Nevertheless, given the strong motivation of the Administration to provide coverage, and the likely desire of the Court to validate its assumption in Hobby Lobby, it is likely that in the end an acceptable solution will be devised.

In the case of women employed by non-profit religious organizations, the answer could be less clear. The per curiam order in Wheaton expressly stated that “Nothing in this interim order affects the ability of the applicant’s employees and students to obtain, without cost, the full range of FDA approved contraceptives.” In contrast, however, Justice Sotomayor’s dissent in Wheaton described administrative problems that she perceived and concluded that the government’s task was “daunting — if not impossible.” Moreover, there may be differences among different religious organizations depending on the nature of their insurance arrangements. Prior to the rulings in Hobby Lobby and Wheaton, the Court had granted a stay in Little Sisters of the Poor v. Sebelius that, just as Wheaton later would, provided an exemption from filing the prescribed form but required a written declaration of the employer’s written objection on religious grounds. Justice Sotomayor’s dissent in Wheaton argued that a crucial difference lay in the fact that in the earlier case the “third-party administrator was a ‘church plan’ that had no legal obligation or intention to provide contraceptive coverage.”

Finally, the eventual decisions on the merits in Wheaton and Little Sisters might or might not adopt the compromise remedies provided at their preliminary stages. The religious employers will probably insist that the provisional remedies granted them are inadequate. We believe, however, that the majority’s stated assumptions of continuing access to coverage will remain intact. If so, there would seem to be no basis for the claim of some that the Court had sacrificed the religious rights of employees. (Beyond that, others have observed that there is probably no established religion whose tenets demand the provision of contraceptives on demand.)

4. Was the decision in Hobby Lobby a narrow one or, as Justice Ginsburg’s dissent claimed, “a decision of startling breadth”?

The short answer is that only time will tell. Justice Alito took some pains to try to allay the fears of the dissent as to implications of the opinion in future cases.

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.

The fears expressed by the dissent may well be exaggerated, but at this point there is no basis for confident predictions concerning future attacks on ACA coverage.

It may be noted that some commentators have posited even more far-reaching concerns. For example, it has been suggested that while Hobby Lobby involved only closely held corporations, it could be expanded to apply to publicly held corporations. Moreover, it has even been supposed that such corporations might then assert religious objections to compliance with environmental laws or the minimum wage. We believe, however, that such scenarios are fanciful and far-fetched, both as to what corporations would attempt and what the Supreme Court would sustain.

The Politics

In Blog No. 22, we had noted conspicuous support by Republicans for the employers case in Hobby Lobby and we cautioned that, if the employers should prevail, Republicans should avoid crowing. That was good advice and, after a giddy day or two, it is a course that they have largely followed. It seems to be generally recognized that, to the extent the decisions in Hobby Lobby and Wheaton have a political impact, it is likely to favor Democrats.

Simply put, while Hobby Lobby and Wheaton may be applauded by a large portion of the Republican base, the decisions are not likely to send many to the polls in celebration or gratitude. For Democrats, however, the decisions produced by Republican appointees to the Court will, fairly or unfairly, fit nicely in their narrative of a “War on Women,” a narrative that will no doubt attract some women voters.