Posted by Amy Davidson

“The Court, I fear, has ventured into a minefield,” Justice Ruth Bader Ginsburg wrote in a strong dissent from a 5-4 ruling, issued by the Supreme Court on Monday, in favor of Hobby Lobby, a for-profit corporation that runs a chain of craft stores and wanted an exemption from part of the Affordable Care Act because it was, its owners said, against their religion. In particular, the owners were unwilling to pay for coverage for certain contraceptives. Justice Samuel Alito, writing for the majority, said that he had “no trouble” concluding that this sort of insurance coverage “substantially burdened” the owners of Hobby Lobby—burdened them morally, if not financially. The government, he wrote, needed to find another way; Hobby Lobby could ignore the law.

Hobby Lobby’s defenders have emphasized that this is a very particular case: the Greens, the company’s owners, are devout, and they are only objecting to four contraceptives. Alito noted that churches and other religious non-profits already have an exemption from this aspect of Obamacare; he figured there were ways for the government to make sure the women working for Hobby Lobby got contraception without making the company pay. What could be the broader harm in letting these pious people off the hook?

To start with, who else is off the hook, or will be? What other companies can ignore which other laws on what real or dreamed-up religious grounds? That is something the majority decision in Hobby Lobby leaves shockingly undefined. Ginsburg called it “a decision of startling breadth,” one that could allow for-profit corporations to “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Alito, in his opinion, denies this; so does Anthony Kennedy, in a concurrence. But neither does so persuasively: their reassurance about the protections against what Ginsburg calls “the havoc the Court’s judgment can introduce” come down to, in Alito’s case, shrugs about how nothing alarming has shown up on the Court’s docket yet and, in Kennedy’s, the belief that everyone will be sensible about this. But if there hasn’t been a wave of cases there also hasn’t been a precedent like this—and now there is. And good sense has never been much of a reliable restraint. This suggests that the majority is either being disingenuous about how broad its ruling is or is blind to its own logic. As Ginsburg notes, religious objections to, say, vaccines are neither as theoretical nor as easily put aside as the majority pretends.

Nor is science much of a constraint. Hobby Lobby is really asserting two religious beliefs: that abortion is immoral and that the kinds of contraception it doesn’t want to pay for are, in fact, a form of abortion, even though the scientific evidence says they are not. The majority defers to both of these beliefs.

Can a for-profit corporation even have religious beliefs—can it be a person acting out of sacred conviction, in the sense of either the First Amendment or the 1993 Religious Freedom Restoration Act (a law Hobby Lobby cites)? Alito doesn’t see why not; it doesn’t seem fair to him that the owners of a business should have to forgo either identifying its religious rights with their own “or the benefits, available to their competitors, of operating as corporations.” But corporations create a legal separation between owners and businesses that protects them in many ways; why is the upside a presumptive right and not any downside?

The decision is limited to “closely held” corporations, that is, ones for which five or fewer owners control more than fifty per cent of the stock, but that is not much of a limit; as Ginsburg writes, “closely held” is not synonymous with “small.” Cargill is closely held, and it “takes in more than $136 billion in revenues and employs some 140,000 persons.” (What if the owners have differing religious beliefs? Alito, in one of this decision’s many invitations to litigation, says “state corporate law” will help.) And anyway, Alito writes, there is nothing here that precludes a publicly held company, of any size, from bringing a suit making the exact same claim: since Hobby Lobby and another company involved in the case, Conestoga, are not in that category, the Court didn’t make a judgment on them either way. That may be next.

Under the Religious Freedom Restoration Act—whose Constitutionality, frankly, seems dubious if it means what Alito says it does—the government has to show that it has a compelling interest in the law despite the burden on the religious, and find the “least intrusive means“ to accommodate believers. Alito says that this test would leave laws against racial discrimination in employment in place, even if someone claimed a religious objection (but, notably, does not say the same about discrimination based on sexual orientation). In the case of contraception, though, it strikes Alito as an easy thing to give for-profit companies the same option that religious non-profits have, which involves insurance companies paying for the coverage themselves. The idea is that access to contraception will mean that women are pregnant less often and generally healthier, so it won’t really cost the insurance companies anything. (The potential hall of mirrors: an insurance company with religious objections.)

But, tellingly, Alito would have given Hobby Lobby what it wanted even if that option didn’t exist. The “most straightforward,“ least intrusive means for accommodating companies like Hobby Lobby, as he sees it, would be for the government to pay. There is plenty of dispute over how much this would cost: “It seems likely, however, that the cost of providing the forms of contraceptives at issue in these cases (if not all FDA-approved contraceptives) would be minor when compared with the overall cost of ACA,“ Alito writes. With that note of cheerful sourness, one sees another factor at work here: lingering conservative anger with Obamacare.

Ginsburg notes that the Religious Freedom Restoration Act specifies that there has to be a substantial burden on a person’s religious freedom for this discussion to even begin, not just any one. Ginsburg writes:

It is doubtful that Congress, when it specified that burdens must be “substantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the woman’s autonomous choice, informed by the physician she consults.
Here is where one hears women’s voices, but, as far as the majority is concerned, it is as if they come from another distant room. Alito sees all the substance in how put-upon the owners of corporations feel. In oral arguments, Kennedy openly worried that companies would somehow be mixed up with abortion, and one suspects that his sense that abortion is a distinctly volatile, morally charged subject was part of why he acquiesced here, and why seems to believe, against all reason, that this decision is narrow. Women’s health is treated as something troublesome—less like other kinds of health care, which a company should be asked to pay for, than as a burden for those who have to contemplate it. That is bad enough. But the Hobby Lobby decision is even worse.

Credit: Pablo Martinez Monsivais/AP