Monday, June 30, 2014

Hobby Lobby and the Politics of Recognition

Joseph Fishkin

In substantive health policy terms, the Court’s decision today in Hobby Lobby was surprisingly minuscule.  The majority and Justice Kennedy insist repeatedly that the substantive impact of the decision on women’s health insurance coverage for contraception, with no copays, will be “precisely zero.”  All they are holding, they insist, is that a statute, the Religious Freedom Restoration Act (RFRA), requires the Department of Health and Human Services (HHS) to expand modestly the set of religious entities that are subject to a special contraception two-step.  (These entities declare they don’t want to cover some contraceptives, and then either their insurer, or in the case of self-insured corporations, their third-party benefit administrator, must provide the contraceptive coverage at no cost to the employees.  This works because contraceptive coverage saves money; its long-run cost is probably negative.*)  HHS set up this accommodation for what we might call actual religious entities, like churches; the Court says that “closely held” for-profit corporations owned by religious people should get this accommodation too.

So, the Court has traded an easily administrable bright line (for-profit corporations versus not) for an ambiguous, future-litigation-inviting test (“closely held” enough versus not).  Other than that, what did Hobby Lobby accomplish exactly?  It doesn’t move the needle much—maybe none at all, if the administration behaves as the Court suggests—on the question of how many women will actually get coverage for contraceptives with no co-pays.  (Most women have it, but quite a lot do not, either because they’re uninsured, or because they still have “grandfathered” pre-ACA employee plans, or because their employer is too small.)

But this case was never really about health policy.  It isn’t really even about the ACA, except peripherally.  This case is about the politics of recognition: it is about recognizing conservative religious claims that (a) contraceptives are different from other forms of health care (an issue the Court somewhat finesses by suggesting that immunizations and so on “may be supported by different interests”), (b) religious people’s “conscience” deserves great deference and priority in the public sphere, certainly a higher symbolic priority than women’s health, and (c) perhaps most specifically on point, that religion is not something people do on their own time, in their own churches, but rather, is a way that apparently even large for-profit businesses may conduct their affairs—and if they choose to do so, society must find ways to accommodate their “full participation in the economic life of the Nation” (p.46).  None of these—neither (a), (b), nor (c)—is really a legal claim.  These are political claims.  But this is high politics, not low politics.  These are claims about how our nation is constituted and the place of religion in it.

This explains the oddest part of the Court’s decision.
The majority and Justice Kennedy are both deeply enamored of HHS’ little two-step, as described above, for providing contraceptive coverage while affirming (a), (b), and (c).  It’s working great, say the majority.  HHS has already implemented it successfully!  So why, then, does the majority also leave the door ajar, as Justice Ginsburg pointedly notes in dissent (p.2 n.1), to a possible future challenge under RFRA to this very accommodation?  [Update: see Marty Lederman's post speculating about the next case.] The answer is: this Court wants to deliver a major symbolic high-politics victory to religious conservatives, along the lines the previous paragraph discusses—and it wants to hold open the possibility of more such victories in the future.  And yet, the Court has found a way to do so without actually disrupting the ACA’s statutory scheme.  Health policy is not what this case turns out to be about.

So, health policy wonks can breathe a sigh of relief—or even, more boldly, declare victory.  However, there are plenty of other reasons to be troubled by this opinion, both as high politics and as precedent.  The Court can’t lay down a marker like this and expect that it won’t lead anywhere.  In this case, fortuitously, it was possible, without interfering much with anyone else’s rights, to give out symbolic-politics bennies to those whose main focus is affirming that religious entities are special and deserving of great accommodation.  But not every case offers this kind of out.  The Court has opened a door here—one that the Court in Employment Division v. Smith wisely concluded was better left closed.  On the other side of that door, as Justice Ginsburg points out effectively, the ground appears to slope downward, in a slippery manner.  Just how far the Court wants to go down that slope, we’ll have to wait and see.  I will predict, somewhat cynically, that the Court will continue to proceed in very small steps—maximizing the high-politics victories, and minimizing, where possible, any substantive impact that might generate much of a backlash.  If that is what the Roberts Court's famed minimalism is about, then it is a cynical thing indeed.


* Self-insured religious companies get a bonus here.  Such a corporation’s third-party administrator has to to provide coverage for contraceptives at no cost.  This costs the administrator money.  The corporation, being self-insured, is the one who obtains the cost savings resulting from reduced unwanted pregnancies.  But it would be a little too cheeky for the administrator to recover those savings through higher fees.  So instead, HHS provides a different mechanism whereby ultimately the contraceptive costs are covered by the federal government.  That means the self-insured religious corporation gets the cost savings of its employees’ actual contraceptive use—good for the bottom line!—but doesn’t have to pay even the modest cost of contraceptive coverage.  It’s a tidy little having-your-cake-and-eating-it-too bonus, now available to for-profit entities as well as nonprofits.

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