Disingenuous

By S.M. | SAN DIEGO

HOW broad is the ruling in Burwell v Hobby Lobby? To listen to Justice Samuel Alito, author of the majority opinion, letting some religious employers off the hook for providing no-cost birth control to their employees is quite modest. The decision applies only to “closely-held” corporations, he wrote, and it is “concerned solely with the contraceptive mandate”:

Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

Justice Alito is a smart guy, so the weak and disingenuous arguments he strings together in this section of his opinion are particularly troubling. The problem goes well beyond the opinion’s misleading implication that “closely-held” companies are a narrow slice of the American business world: at least half of American workers are employed by such corporations.

Let’s look at the word “necessarily” and the work it does in the first sentence. Don’t read our ruling to accommodate every conceivable religious objection to insurance-coverage mandates, Justice Alito means to say. We are not opening the door to Jehovah’s Witness employers refusing to pay for blood transfusions (he implies) or religious objections to vaccinations. But “necessarily” is redundant here, following right on the heels of “must.” Why include it? Since every challenge to a law under the Religious Freedom Restoration Act (RFRA) must be analysed in terms of the compelling governmental interest it purports to serve, and the question of whether it is the least restrictive means to serving it, it is a truism that no one could foretell the outcome of a particular religious objection to a rule. But by adding “necessarily,” Justice Alito ironically puts too fine a point on it. He implies that an employer’s religious beliefs may, in contexts other than birth control mandates, merit accommodation under RFRA. The beliefs aren’t necessarily deserving of accommodation, but they aren’t necessarily undeserving either.

So Hobby Lobby does, in fact, open the door to pious bosses pressing objections to all kinds of federal requirements—and not only insurance mandates—it deems out of line with their religious beliefs. Imagine an employer who believes it the duty of men to be breadwinners while women raise children, and that it is his religious duty to instil that reality among his employees. (The suggestion is not outlandish: not so long ago Southern Baptists declared that a woman should “‘submit herself graciously’ to her husband’s leadership and that a husband should ‘provide for, protect and lead his family.'") Should this boss's business be exempted from the Family and Medical Leave Act (FMLA) requirement to provide unpaid child-care leave to a male employee?

The suggestion sounds outrageous, and it is. But what in Justice Alito’s opinion would distinguish this from Hobby Lobby’s perfectly reasonable exemption from paying for employees’ IUDs or morning after pills? Well, Justice Alito might say, as he does for the immunisation example, that FMLA coverage for male employees “may be supported by different interests”. Yes, of course the interests are “different”: women’s reproductive health and the prevention of childhood disease are different interests, and work-life balance is yet another “different” interest. But this is irrelevant to the analysis. The question under RFRA is whether the interests are compelling enough to override religious objections, and Justice Alito accepts, on p. 40 of his opinion, that “the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA.” It’s not the most ringing endorsement of women’s health, to be sure, and it follows a few paragraphs where Mr Alito casts doubt on how compelling the interest really could be, but it is an endorsement nonetheless. Justice Alito seems to want to say that immunisation is a truly compelling governmental interest whereas free IUDs aren’t, but he suppresses his inner Rush Limbaugh and merely implies that.

So the only arrow left in Justice Alito’s quiver is the least-restrictive-means test. Is there any other way of protecting women’s reproductive health that impinges on religious employers less substantially than the contraceptive mandate? Yes, Mr Alito declares, there are two.

First, he says, the government could pay: “The most straightforward way of doing this 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.” Straightforward? Is Justice Alito familiar with the legislative body known as Congress right across the street? Does he truly think that lawmakers who have tried to repeal Obamcare dozens of times (and haven’t given up) will be amenable to a new government programme funding morning-after pills? But leave aside the political implausibility. As Justice Ginsburg aptly notes in her dissent, such a work-around is anything but straightforward for women seeking access to a federally guaranteed benefit:

The ACA [Obamacare]...requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logistical and administrative obstacles.” ...Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated.

Justice Alito’s second suggested solution sounds more reasonable at first blush, but he undercuts it as soon as he proposes it. The idea is to take an accommodation already available to religious nonprofit groups who object to paying for employees’ birth control and extend it to for-profit companies. Under the accommodation put in place by the Obama administration in June of 2013, universities and charities with a religious objection to contraception could fill out a form requesting an exemption. Women working at these organisations would then receive no-cost birth control directly from the insurance companies, without any payment or coordination from the employer. In gamely laying out this model for closely-held companies, Justice Alito papers over the outrage with which many religious groups have received it. A spokesman for the Becket Fund, a religious liberty advocacy group, said “the bureaucrats’ proposed solution does not solve anything,” while Colorado Christian University called it “meaningless.” The Little Sisters of the Poor, an organisation in Colorado, is just one charity suing for an exemption from the terms of the exemption.

This disgruntled response does not bode well for Justice Alito’s proposed fix and belies its reasonableness as a less restrictive way of providing women with birth control. But that is not what’s most troubling about the proposal: the majority opinion does not even endorse its legality. “We do not decide today,” Justice Alito writes, “whether an approach of this type complies with RFRA for purposes of all religious claims.” That analysis must await another day in court.

Taking pains to portray a ruling as narrow and modest is a fairly sure sign that it is anything but. Such is the case with Justice Alito’s singularly immodest opinion in Hobby Lobby. A new principle now holds that corporations are capable of holding religious beliefs and that these beliefs may be impinged only under very limited circumstances. That is in no sense a narrow decision.

Dig deeper:

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