Tuesday, June 30, 2015

Hobby Lobby’s Bitter Anniversary

Nelson Tebbe

Nelson Tebbe, Richard Schragger, and Micah Schwartzman

A year ago today, the Supreme Court handed down Hobby Lobby. There, famously, the Court extended a religion accommodation to a business corporation, freeing it from the legal obligation to include coverage for certain contraceptives in its employee health plan. At the time, the Court strongly implied that the impact on employees would be “precisely zero.”

Yet today, a full year after the Court issued that statement, Hobby Lobby’s employees are still not receiving coverage. As we explained in a previous post, the Obama Administration has not yet implemented the solution that the Court suggested in its opinion, perhaps because of understandable difficulties defining what counts as a closely-held corporation (that definition matters because the Court limited its holding to such entities). Moreover, any solution that is ultimately provided cannot be retroactive, according to the Court’s own doctrine. And Hobby Lobby may well have stopped providing contraception coverage even before the Supreme Court ratified its ability to do so.

In the interim, employees must be suffering harm that is serious and irreparable. As Judge Posner said in his opinion last month for the Seventh Circuit,

About half of all pregnancies in the United States are unintended, and 40 percent of them end in abortion and many others in premature births or other birth problems. Many of the unintended pregnancies are teen pregnancies, and contraceptive use has been found to be positively correlated with decreased teen pregnancy. Because out-of-pocket expenditures on female contraceptives can be substantial for many women, the provision of such contraceptives without cost to the user can be expected to increase contraceptive use and so reduce the number both of unintended pregnancies and of abortions. Furthermore, “women who can successfully delay a first birth and plan the subsequent timing and spacing of their children are more likely than others to enter or stay in school and to have more opportunities for employment and for full social or political participation in their community.”

(Citations to the scientific literature omitted; Judge Posner also cites to the discussion of the benefits of contraception coverage without cost sharing in the D.C. Circuit's opinion in Priests for Life.) Although some commentators have characterized this harm to employees as merely temporary or otherwise negligible, that view is seeming more and more implausible.

It should be noted that many of the for-profit corporations that objected to the contraceptive mandate opposed all forms of contraception, not only those drugs that Hobby Lobby’s owners and others believed to be abortifacients. Furthermore, since Hobby Lobby was decided, many companies have received permanent injunctions that exempt them from paying for all forms of contraception. The Becket Fund lists 47 injunctions granted to for-profit companies, several of which object to providing broader contraception coverage. See, for example, this injunction granted to Autocam Medical, LLC, a company with more than 600 employees in the U.S. The controversy around Hobby Lobby was never only about abortifacients. The scope of the litigation has always extended more broadly to contraception generally.

In granting exemptions for Hobby Lobby and other for-profits, the Court should have conditioned relief on absence of harm to their employees. Under that regime, companies could win accommodations but only if and when a victory would not impose harm on third parties. As we have been arguing, along with others, the imperative of avoiding harm to others is required by both the Establishment Clause and free exercise provisions. Without requiring protection of third parties, the Court has set the conditions for ongoing constitutional and statutory violations.

Happy birthday, Hobby Lobby.

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