Columns » Jay Barth

Hobby Lobby case affects more than just contraception

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I've known for years that the founders of Hobby Lobby and I diverged on some fundamental societal values. Still, lacking the patience for activities such as scrapbooking or candle-making, the store has never been relevant to me; avoiding it created as little personal sacrifice as veering away from Chick-fil-A (as a vegetarian, not much). Because of the corporation's lawsuit challenging a provision of the Affordable Care Act, heard this week by the U.S. Supreme Court, it's a company that soon may be deeply relevant to all Americans.

In a compromise that was key to the law's passage, most employers that provide employees health care coverage must now allow female employees to access all contraception methods without charging copays or other fees. Hobby Lobby (along with a Pennsylvania cabinet company in a separate case) argues that certain emergency contraception methods that must be covered veer into abortifacients and, therefore, the company is forced to choose between its core religious tenets and the large fine brought about by violating the act.

Obamacare will ultimately be recognized as one of the nation's most important sex antidiscrimination measures and the contraceptive provision is a key component of its being a force for equality. American women vary dramatically in access to contraceptive coverage and myriad studies have shown that even when women's insurers provide coverage, high copays often push women to use less effective methods or to use contraception in an inconsistent manner. The well-regarded Guttmacher Institute, which filed an amicus brief in the case, notes the disproportionate impact on working class women. Starting to use implants and IUDs have costs equal to a minimum-wage worker's monthly pay; emergency contraception used in the most dire circumstances is similarly not fiscally feasible for many women. But, the import of the case goes far beyond women's equality.

Hobby Lobby grounds its claims in the Religious Freedom Restoration Act (RFRA) of 1993, a law that was overwhelmingly passed by Congress and signed by President Clinton. Its purpose was, in essence, to overturn a 1990 Supreme Court case in which a majority opinion by Justice Antonin Scalia argued that religious practices should not trump a "neutral law of general applicability." The Supreme Court reasserted the 1990 decision in striking down RFRA as applied to state and local governments in a 1997 case.

The Hobby Lobby case centers on whether RFRA can be used to stymie a federal regulatory act. A victory by Hobby Lobby would give rise to challenges to current and future federal laws that infringe upon some private entities' religious tenets. Moreover, it will send a signal for how state-level RFRA's (several around the country, with more under consideration) will be analyzed by the federal courts. Most attention on this issue has focused on the implications of RFRA's in "protecting" those with religious objections from being subject to laws that bar discrimination against gays and lesbians, but others have argued with a straight face that minimum wage laws and health and safety rules intrude into their core religious beliefs. Thus, a win for Hobby Lobby has the potential to create "a system in which each conscience is a law unto itself" (to quote Justice Scalia from the 1990 decision).

Finally, a victory for Hobby Lobby would only further cement the rise of corporations as "persons" in the eyes of the Supreme Court. While the infamous Citizens United case in 2010 granted corporations First Amendment protections in the realm of political speech, a favorable ruling for the corporations here would extend the constitutional rights of a corporation to another component of the First Amendment — free exercise of religion. As two authors of amicus briefs in the Hobby Lobby case point out, across the decades and across the ideological spectrum, Supreme Court justices have agreed that corporations should have only narrowly defined constitutional rights, differentiating them starkly from individuals. Another positive outcome for corporate personhood in this case would move us increasingly towards a reality where, indeed, "corporations are people, my friend." Such a reality would starkly limit the government's ability to control those corporations even when they engage in practices that are harmful to society.

The current Supreme Court has tended toward narrow decisions saving some aspects in key cases to be answered later. Thus, the legal questions related to religious freedom and corporate personhood that are part of the Hobby Lobby case may not be fully answered this year. Yet even a nudge in one direction or the other will have big ramifications for more than just access to contraceptives.

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