Hobby Lobby Decision: Observations
Brief Primer On The RFRA & Strict Scrutiny
The Supreme Court has ruled that Hobby Lobby and similarly-situated employers are not subject to the birth control coverage mandate because that mandate “substantially burdens” the free exercise of their religious beliefs under the Religious Freedom Restoration Act of 1993. That law provides that any law which “substantially burdens” the practice of religion must serve a “compelling state interest” and also be the “least restrictive means” of achieving that interest.
This two-tiered test is known as “Strict Scrutiny.” It is a standard of judicial review long used by federal courts (and state courts reviewing federal constitutional questions) to adjudicate cases involving certain categories of constitutional rights. Congress imported this standard of judicial review into the RFRA to force federal courts to apply Strict Scrutiny to the Free Exercise Clause of the First Amendment. In doing so, they reinstated the holding of a case called Sherbert v. Verner into federal law.
The case largely turned on two questions: (a) does the birth control mandate actually “substantially burden” the practice of religion for employers like Hobby Lobby, and (b) assuming that public health is a compelling state interest (according to the relevant case law, it is), is the mandate the least restrictive means of achieving that interest?
Alito’s Confusing Analysis Of The ACA’s Self-Certification Exception
Justice Alito wrote the opinion for the court. According to the opinion, the birth control mandate violated the RFRA because it was not the least restrictive means of achieving the compelling state interest of protecting women’s health. As evidence of this, the Court cited coverage exceptions in the law:
HHS…has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation, the organization can self-certify that it opposes providing coverage for particular contraceptive services. See 45 CFR §§147.131(b)(4), (c)(1);26 CFR §§54.9815–2713A(a)(4), (b). If the organization makes such a certification, the organization’s insurance issur or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements … on the eligible organization, the group health plan, or plan participants or beneficiaries.”
The problem here is that Alito basically explained here why the law actually meets Strict Scrutiny. Alito points to the self-certification exception as an example of a less restrictive means the Government could use to achieve the compelling state interest in this case. That exception is already part of federal law. If the exception is already part of the existing law, than the least-restrictive means Alito is pointing at already exists. It’s logically absurd to state that the self-certification exception is an example of less restrictive means the Government could use to satisfy the RFRA’s Strict Scrutiny requirement when the exception is already part of existing law. The Government has already done what Alito is suggesting it should do to satisfy Strict Scrutiny.
Furthermore, even if this were not the case, the existence of an exception doesn’t actually prove anything in terms of whether the mandate is the least restrictive means of achieving the compelling state interest at issue here. If the Government has the constitutional power to regulate something, it isn’t obligated to exercise that power to its fullest extent. If Congress has the power to do something, it is free to exercise that power to a lesser degree if it wants to. This could potentially create an Equal Protection problem, but that would introduce a much different legal analysis of the issues presented here.
The Single Payer Sleeper
Secular opponents of the contraception mandate who opposed it on “limited government” grounds may wind up eating this case in the long run. Here is a quote from Part V(B) of Alito’s opinion:
The least-restrictive-means standard is exceptionally
demanding, and it is not satisfied here. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting parties in these cases…
The most straightforward way of [covering birth control] would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.
In other words, Alito’s opinion basically states that putting the Government in charge of paying the cost of services that employers refuse to cover is the easiest way to avoid First Amendment problems posed by the mandate. According to Alito’s reasoning, the best way for the Government to meet the RFRA’s Strict Scrutiny requirement is for the Government to pay the cost of providing health insurance coverage, rather than forcing employers to cover their employees.
Single Payer advocates have been screaming about this for years. Removing the myriad burdens of providing health insurance from employers (which includes the compliance costs as employers navigate state and federal insurance regulations) has always been one of the arguments in favor of switching to a publicly-financed health insurance system. Alito’s opinion provides another argument in favor of that position. The fact that many folks are touting this case as a win for limited government without any mention of this part of the opinion is evidence of the fact that nobody except lawyers and law students read judicial opinions. It’s also an example of why journalists and news sites really need to start linking to the judicial opinions they report on, so that maybe more of the citizenry will start doing so.