It’s hard to imagine anyone being UNaware that in its recent 5-4 decision, the US Supreme Court (USSC) allowed Hobby Lobby (HL) to get around the Affordable Healthcare (ACA) law requiring employers to provide certain kinds of contraceptives to their employees. The owners of Hobby Lobby sued for this relief based on their conviction that the contraceptives in question are a form of abortion (1) and thus, run counter to their “sincerely held” religious prohibition against the procedure or a drug-induced substitute. More specifically, HL’s lawyers argued that the federal government was unconstitutionally infringing on the corporation’s owners’ free practice of their religion. What follows is a closer examination of this position; what it is and what it isn’t. The latter first.

HL made no claims that the government was preventing them from attending the church of their choice and/or going out and publicly advocating for new believers and against abortion in any form.  Nor was there a challenge, generally speaking, to the government’s right to compel behaviors that at least some citizens might find objectionable. No, this case was based exclusively on one thing and one thing only:  a claim that the ACA was forcing HL to act against their “sincerely held” belief that abortion in the form of a limited range of pills and devices is morally wrong and thus a violation of the Constitution’s article vouchsafing religious freedom; a provision that places no restrictions on how that belief finds expression (2). That is the argument that the USSC upheld. However, the majority’s opinion, written by Justice Alito, restricted its application to “closely-held” corporations; defined by law as an entity whose ownership is confined to 50 or fewer individuals. As a family-owner business, HL meets that definition. Thus, one can properly gather from the immediate foregoing that the majority decision was advanced as a narrow one; i.e. supposedly providing an exemption only to closely-held corporations and their objection to supplying a very limited number of contraceptives to employees. Such narrow opinions are rendered to set threshold criteria that future plaintiffs must cross if they seek the kind of relief that HL secured. Unfortunately, the result of the USSC ruling in the HL case had barely become public than new potential plaintiffs started coming forward. Prominent among those is Wheaton College, a small evangelical school in Illinois. The school’s lawyers have already filed for a waiver such as the one attained by HL.

This latest development involving Wheaton is quite unlikely to be an isolated one. In her blistering dissent, authored for the court’s minority (3), Justice Ginsberg pointed to an array of potential plaintiffs when she asked  “Would the exemption (granted to HL)…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?” She went on “Approving some religious claims while deeming others unworthy of accommodation could be ‘perceived as favoring one religion over another’, the very ‘risk that the (Constitution’s) Establishment Clause was designed to preclude”. Wow; think of the possibilities for litigation all the way to the USSC.

Do not be surprised if what was supposed to be a narrow ruling turns out to be anything but as more and more pleadings like HL’s and Wheaton’s find their way into our judicial system. Your blogger shares Justice Ginsberg’s view that “The court…has ventured into a minefield” (4)

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1.  In HL’s view, the so-called “morning after” pill is no different from an abortion.

2. The Constitution liberal stance on freedom of religion notwithstanding, there have been rare occasions when the courts have put limits on it.  A case from 1990, now largely forgotten, had the USSC rule against Native Americans’ use of a psychotropic drug (peyote) in their religious ceremonies. Given the recent legalization of marijuana, that ruling seems laughable today.

3. Interested parties can read the Justice’s entire 35-page dissent by Googling “Ginsberg’s Hobby Lobby dissent”.

4. “Minefield”…Pandora’s box”…”slippery slope”…”can of worms”. Pick your favorite cliche’. The likelihood is that all will eventually apply.

 

 

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