In 2010, the U.S. Congress passed the Affordable Care Act (ACA) which requires for-profit companies to cover certain kinds of preventive care for women, including all twenty FDA (Food and Drug Administration)-approved contraceptives (sixteen of which are contraceptives and four of which can act to induce abortions), in their employer-based health plans. While there are exemptions for religious employers and non-profit religious institutions, no exemptions are available for for-profit corporations, such as Hobby Lobby Stores, Inc. The Hobby Lobby Stores, Inc., with over 500 stores and over 13,000 employees across the United States, running arts and crafts and considered as an industry leader, is owned and operated by the Green family. The Green family has organised its business committed to the principles of the Christian faith and has also explicitly stated its tenet to run the company according to Biblical precepts on its official website.
In September 2012, on the basis of another Federal Law Religious Freedom Restoration Act (RFRA) and the Free Exercise Clause of the First Amendment in the U.S. Constitution, Hobby Lobby filed a suit against the U.S. department of Health and Human Services (HHS) requesting a preliminary injunction of the enforcement of the four contraceptive drugs leading to abortion in the U.S. District Court in Oklahoma, which was unfortunately denied. However, the Tenth Circuit overruled the District Court’s ruling and in September 2013, the government appealed to the U.S. Supreme Court. On June 30th, 2014, the Supreme Court ruled in favour of Hobby Lobby to prevent them from being compelled to provide the four contraception under their health plans, by a close 5-4 vote.
The U.S. Supreme Court’s majority opinion can be stated as follows. Firstly, the court decided that RFRA can be read as extending to closely held corporations to protect the rights of shareholders, officers and employees. The court found that even for-profit corporations can be considered persons under RFRA. Secondly, as the contraception requirement compels religious corporations to fund abortion, which either severely goes against their principles or renders significant fines for them, it creates a substantial burden and therefore fails the “least restrictive” method of implementing the government’s interest. Thirdly, the court held that this ruling only applies to the contraceptive in question on religious grounds. The concurring opinion held that the government has not successfully proved a meaningful difference between non-profit religious institutions and for-profit ones under RFRA. The dissenting opinion viewed this ruling as it established the precedent that commercial corporations “can opt out of any law they judge incompatible with their sincerely held religious belief… Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law, whether under the Free Exercise Clause or RFRA. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities.”
The Applicability of Religious Freedom Restoration Act (RFRA)
The Burwell v. Hobby Lobby (2014) case has prompted a huge discussion about the final ruling itself and also about the possible implications over the whole country. It is the first time that the court has applied the RFRA to a for-fit company and does not refer to first Amendment. The constitutionality of the RFRA of 1993 was in contest for some time after its codifying, it continues to be applied to the U.S. federal government at any rate. Till 2006, in Gonzales v. Centro Espirita, the constitutionality of the RFRA was eventually endorsed by the Supreme Court. Burwell v. Hobby Lobby ruling’s supporters find the Supreme Court’s opinion correctly identified a way in the RFRA to guide people who live together despite deep differences. The RFRA aims to prevent laws that substantially restrict a person’s free exercise of religion so that it requires strict scrutiny when a neutral and general law contains such provisions. The RFRA also provides clear criteria to weigh between competing interests when government interests and religious freedom are in conflict. That is first, the claim must be a substantial burden on religious freedom, second, the government must reveal a compelling interest, and third, the interest can only be pursued through the least restrictive means. The majority opinion indicated that the dissenting opinion to the claims of the plaintiffs was a fundamental dissent against the RFRA itself, since the dissent worried that federal courts might apply the RFRA to a host of claims made by litigants seeking a religious exemption from generally applicable law, going far beyond the court’s business. However, what is worthwhile to note is that the dissenting opinion did not question the applicability of the RFRA, but it challenged the law’s extending application from natural persons to for-profit corporations, in other words, the eligibility of the law’s claiming subjects.
Precisely because of that point, this case and its ruling have given rise to many diverse but nevertheless connected formidable concerns for the future. Such as, how can corporations develop conscience? Does this case signal a trend of expanding corporate rights? What is the demarcation between corporations that can be personalized and those that cannot? Will the current standard of “closely held” corporation be expanded in future cases? Would the ruling have been any different if the Hobby Lobby had not been a family-based business? What will future similar cases be like if the corporation is owned and managed by people from a variety of family names with different but equally sincere religious beliefs? Will the dissenting opinion’s prediction of rampant religious challenges become reality, that is to say, will Hobby Lobby open the floodgates to religious exemptions?
Religious Freedom vs. Women’s Interests in Contraception
Back to the case itself, one significant question especially inflames the public debate after this final ruling, that is how will this case affect female employees in religion-based corporations? Should religious objections to contraception be allowed to trump women’s interests in access to contraception? The exemption for Hobby Lobby cannot be good news for their female employees as it indirectly imposes significant costs on them. As a matter of fact, a great many women today still cannot afford the safest and most effective contraceptive, for those who need the four forms of contraception to stop pregnancy, the victory of Hobby Lobby will aggravate the situation of women affected, as they will not be able to file for any insurance to cover for the cost of contraception.
Some voices reckoned that women did not exactly lose in this case. For one thing, Hobby Lobby was willing to cover the cost of at least sixteen types of contraception out of twenty. So strictly speaking, their female employees were not denied access to birth control per se. Besides, they argue it is women who are behind the Christian family-run business Hobby Lobby since Barbara Green is one of the co-founders of the enterprise. The victory of Hobby Lobby’s religious freedom is also a victory for women’s religious freedom, ergo, a victory for women. I find these voices are both confusing and impertinent. The repercussion for women from this case is not restricted to the female employees of Hobby Lobby solely, but to all female employees who might be influenced in the whole country. The number or price of the contraception that Hobby Lobby refused to cover does not alter the fact that women’s health interests in this case are hurt. And it is a completely distinctive matter to women’s religious freedom and their interests in other respects.