The Impact of the Hobby Lobby Case

By: Anand Tayal, Contributor

The “separation” between religion and politics in America is widening. Abortion remains a woman’s legal choice under the provision of the Supreme Court decision in Roe vs. Wade, SB1062 was struck down by Gov. Jan Brewer, and 20% of American citizens claim to be atheist up from 10% in 2007. Religion, especially Christianity, seems to have lost its once major influence in the American political system.

This was until the recent Burwell vs. Hobby Lobby Inc. Supreme Court case. A 5-4 decision allowed closely held for-profit corporations to be exempt from a law they religiously object to if there is a less restrictive means of furthering the law’s interest. For this particular case, Christian business owners now do not have to provide contraceptives as a part of the employer based health insurance in their company. The four kinds of contraceptives subject to the Hobby Lobby decision are Plan B “The Morning After Pill”, Ella (a similar type of “emergency contraception”), Copper Intra-Uterine Device, and IUD with progestin.

Employer based health insurance began after the wage control measures taken by the American government after World War 2, where employers could not raise wages in order to attract employees, thus employers themselves began providing health insurance and other benefits in order to make a position more attractive. Using health care and other fringe benefits to attract the best employees coupled with Medicare and Medicaid expanded the U.S. health care system. The effect of this mass expansion of the U.S health care system has been enormous: 84% of Americans have some form of health insurance and 44.5 % of employed Americans still receive employer based health insurance.

The final decision in the Hobby Lobby case subjects those 44.5% of Americans to the religious beliefs of their boss. Christians, who make up 77% of the population, tend to oppose abortion. Now, they can deny their female employees health insurance that covers four forms of the most effective and expensive forms of contraception. For example, the IUD, something Hobby Lobby objects to, can cost between $500 and $1,000, including the care surrounding its insertion. According to the American College of Obstetricians and Gynecologists, “Lack of insurance coverage deters many women from choosing a high-cost contraceptive, even if that method is best for her health and lifestyle, and may result in her resorting to a method that places her more at risk for medical complications or improper or inconsistent use.”

Religious beliefs do not justify making it financially difficult for a woman to receive the best possible care. Additionally, the contraceptives listed in the final decision do not technically constitute as abortion, which is the premature exit of the products of conception (the fetus, fetal membranes, and placenta) from the uterus. The medical definition of pregnancy begins with the implementation of the fertilized egg. So under this definition, affecting the embryo constitutes as abortion. All four contraceptives subject to the decision in the Hobby Lobby case do not affect the implanted embryo but instead prevent ovulation which excludes them from the definition of abortion. However, religious conservatives ignore the medical definition and hold that pregnancy and life itself begin at the moment an egg is fertilized. Without any scientific evidence to uphold the arbitrary religious definition, the court should have deferred to the given medical definition of pregnancy. The four contraceptives subject to the decision in the Hobby Lobby case do not constitute as abortion. Making it financially challenging for women to purchase contraceptives only creates more distress.

The justification for decision in the Hobby Lobby case relies mainly on the provisions guaranteed in the Religious Freedom Restoration Act (RFRA). The RFRA ensures protection of sincere religious beliefs when a neutral law of general applicability “substantially burden[s] a person’s exercise of religion”. Justice Alito who wrote the majority opinion states that, “Under RFRA, 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.” If providing contraceptives is defined as a substantial burden on Christians and their beliefs and a less intrusive alternative exists, than the Hobby Lobby ruling is justified under the provisions found in the Religious Freedom Restoration Act.

However, the United States Supreme Court ruled in Employment Division v. Smith (1990) that a person may not defy neutral laws of general applicability even as an expression of religious belief. A neutral law is one with no moral implications, and if the Affordable Care Act is defined as a neutral law than the Hobby Lobby decision violates the contraceptive coverage provision. The Affordable Care Act provides that companies who refuse to provide all twenty contraceptives are fined $100 per individual per day, or they can replace their health coverage with higher wages and a calibrated tax. Under the recent ruling, certain for-profit businesses can be exempt from the HHS regulations found in the contraceptive coverage provision. The Hobby Lobby ruling undermines the contraceptive provision in the Affordable Care Act and the ruling in the Employment Division vs. Smith.

Without a clear legal or social justification for the decision in Burwell vs. Hobby Lobby, we as a nation must look at the precedent this ruling has on future cases regarding religious rights. Once Christians are given the right to be exempt from the law for religious reasons, than other religions will soon advocate for the same right. Justice Ginsberg explains, “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)?.”

Religion can now justify exemption and creation of new laws including ones that are inflammatory such as anti-Gay laws similar to SB1062 in Arizona. Christian business owners by the same logic presented in the Hobby Lobby case, will potentially advocate to deny service to homosexuals. A wave of civil rights abuses against gays and other impactful law changes could potentially follow suit. The Hobby Lobby decision, while promoting “freedom of religion”, will, at the same time, also present a negative burden on American civil society. Practicing one’s religion is a cornerstone of American society, but practicing it at the expense of someone else is not.