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Hobby Lobby wins, narrowly.

As you've no doubt seen, in a 5-4 decision the Supreme Court decided in favor of Hobby Lobby, which means that the company--along with other similarly structured businesses--will not have to provide its employees with coverage of contraceptives it objects to. Hobby Lobby, joined in its suit by Consetoga Wood Specialties, argued that the Affordable Care Act's contraception mandate violated the Religious Freedom Restoration Act. According to RFRA, in order for the government to impose a potential religious burden on a person, it must be advancing a "compelling governmental interest" and it must use "the least restrictive means" possible. The Court ruled that while providing contraception coverage to employees is a compelling interest, the mandate fails to pass the "least rectrictive means" test.

Instead, the Court held, the government could pay for contraceptives directly. Or--and this pertains to lawsuits brought by religious employeers--it "could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate." The majority continued: "That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests." Perhaps a version of that accommodation will be reworked for businesses like Hobby Lobby.

Justice Ginsburg wrote the main dissent (there were three), and she was joined by Justices Sotomayor, Breyer, and Kagan (in all but one part). Ginsburg criticized the majority for the "startling breadth" of its decision. The ruling means that any business "can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs," she wrote. "The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations' employees and covered dependents."

The ruling itself is quite narrow. First, it applies only to businesses defined by by the IRS as "closely held." Such companies have more than half the value of "outstanding stock five or fewer individuals at any time during the last half of the tax year." Second, the ruling pertains only to the contraception mandate. Employers claiming religious objections to covering, say, blood transfusions, cannot exclude such procedures from their employee health plans. Neither will racial discrimination be permitted: "The government has a compelling interest in providing equal opportunity to participate in the workforce without regard to race, and prohibitions on racial discrimination are precisely tailored to acheive that critical goal." As noted by SCOTUSblog, "this leaves open the question of whether the government has a similarly compelling interest in preventing discrimination on the basis of sex or sexual orientation."

SCOTUSblog also raised two key questions not settled by the ruling: Can the Department of Health and Human Services offer closely held for-profit businesses the "accommodation" it devised for religiously affiliated employers who object to the contraception mandate? That accommodation, you'll recall, allows such organizations to exclude contraception coverage from their employee health plans, while requiring third parties to provide the coverage to employees who want it. All they need to do is self-certify that they object to covering contraception on religious grounds, and they're accommodated.

That leads to the second question: Some religious organizations (like Notre Dame) have objected that the self-certification process itself creates a substantial burden on their religious freedom--and therefore violates RFRA--because it forces them to participate in a process that leads to employees receiving contraception. Will the Supreme Court agree? Those cases haven't yet made it there. But it won't be too long now.

Update: Have a look at Mark Silk's take. The majority's suggestion that the accommodation balances the government's compelling interest with RFRA's "least restrictive" test means that "Hobby Lobby will prove to be a significant setback for the Catholic bishops and other free exercise maximalists, a good omen for contraception coverage advocates, and a fine result for those interested in a reasonable balance of the interests at hand."



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Walk me through this then. An 18 year old unemployed girl parties one night following her graduation and does some things that she regrets and fears for possible pregnancy. Stressed out, she goes to emerg and explains to the er folks what happens and that she is worried about pregnancy.  She DOES not want her parents to know because here will be serious repercussions. So, please, she pleads, don't run this through their insurance (under which she might be covered). They don't give her an exam, a pill, and send her on her way?? Or what if her parents are on Social Security and do not have insurance.

I seems to be that this would fall under approprate e.r. procedures for which they would just bill medicare just like they do when anybody who lacks insurance comes through the door. They are legally mandated to provide emergency services...period....Any follow up woud be different. 

George, sorry you seem to be getting beseiged here.

The scenario you offer is not likely to happen. In the first place, morning after pills are over-the-counter drugs in Michigan. If the condom fails during a "party" (most of these kids do NOT have unprotected sex; the dangers of STDs and pregnancy have been drilled into their heads since age 10 by parents and schools, and they can buy condoms in the local gas station restrooms for a buck), she is most likely to make her boyfriend chip in to help her buy the pill herself OTC (which she can do legally in Michigan if she is 17 or older).

If she is under 16, she is likely to tell her mom (most kids seem fairly willing to disclose this type of info to their parents) or older sister/friend, who will buy the pill for her, assuming there are no religious scruples about it. (Catholic moms, take note: Here's an area where you may want to discuss church teaching with your daughters ...)

The morning after pill is more effective the sooner after intercourse it is taken. So most girls are not going to bother trying to get in to see a doctor in the ER or to see their regular physician to get the pill. They're going to head to the nearest late-night pharmacy, or hit the pharmacy that opens soonest in the morning. 

I don't know anyone who has used a morning after pill who didn't buy it OTC. 

Another alternate scenario, which is more frightening and possibly involves criminal behavior, is when a lot of drinking has occurred and a girl does not remember if she has had sex or not. In this case, she may get friends to help her obtain a morning-after pill, but she may not seek medical attention to ensure that she has not contracted a disease or been injured. And the perps get off scot free.

Apologies for going off topic here.

George D,

If you go to an emergency room in the United States without insurance, you will get treated, but that treatment is not free. You will receive the bill which will only go away if you pay it or file bankruptcy.


Wow. As Johnny Carson would say, I did not know that. I came across this interesting bit from the er physicians of America:

  • The most pressing economic issue in emergency medicine is uncompensated care: the lack of adequate reimbursement for emergency medical care has led to the closure of hundreds of emergency departments.

So, somewhow they are not being reimbursed adequately from medicaid or whoever. The payer system is actually contribuing to poorer health outcomes and increasing costs.

Emergency physicians continue to be concerned that payer policy jeopardizes the health of their patients. When insurance plans discourage patients from going to the emergency department, they are sending a dangerous message that patients – instead of doctors – should be diagnosing themselves. Delayed medical care often leads to much more complicated and costly medical conditions.

George D,

Who was supposed to pay for the contraceptives was clear according to the law. The dispute was over whether requiring the insurance provided by the employer was a burden to the employer's religious freedom that was illegal under the RFRA or unconstitutional under the First Amendment. Because the Court ruled against the mandate, Hobby Lobby is now able to purchase insurance that does not cover these contraceptives. Its employees may be able to obtain coverage in a manner similar to religious nonprofits, but the Court didn't require this.

I object to considering the requirement to purchase insurance that covers these contraceptives to be an illegal burden. The requirement isn't fundamentally different from paying taxes that go to fund activities that a person finds immoral, and the Court has a long precedent of finding that this isn't an infringement on one's religious liberty. If people think that buying the insurance would be immoral, their options are the same as the one's pacifists have had: structure their lives in a way that minimizes their participation in what they see as immoral and lobby the government to change its policy. This is how abortion was handled with the ACA. Many wanted to require insurance to cover abortion while many objected to government subsidies being used to buy insurance that covers abortion. Those who objected won the political fight, and exchange subsidies cannot be used to purchase a policy that covers abortion.

George D,

Medicaid only pays for people covered by Medicaid. There were programs to compensate hospitals for when the uninsured don't pay their bill, but I believe these programs were cut in the ACA because the number of uninsured would be going down. In any case, before a hospital could seek compensation from these programs, it would have to bill the patient and try collect. Only when the patient didn't pay could the hospital get compensation from the government.

I agree somewhat Ryan. But it goes to the issue of whether the insurance mandate is considered a "tax". Obama said politically it wasn't but in court argued that it was. Roberts supported the ACA on the premise that the penalty is considered a tax. I just have a hard time seeing it that way. I don't think that the government should be in the business of requiring people to buy a product that they feel they don't need. I hear the entire argument and Alito asked a good question to the government lawyer. Since we know everyone is going to die. And since we know that there are burial costs. Those burial costs might constitute an undue burden on the states so why not require everyone to purchase burial insurance. We are afterall in the funeral market as soon as we are born just like we are in the health market as soon as being born.

But govenrment should be in the business of tending to the common good and I have no problem with tax dollars being used for this purpose as opposed to ridiculous foreign entanglements where soliders are paid and the military maintains golf courses for soliders in the middle of the Afghan desert (yep relative in the military and that is what they did in spare time). Built a golf course. Great engineering feat but not sure that is the best use of tax dollars. Not anti-military just saying spending out of control.

The whole government money for abortion is a bit of a straw man anyway. Doesn't medicare cover abortion? I would be surprised if it didn't for early term anyway. 

At any rate, it was poorly thought out legislation and opened up too many problems. At the end of the day, the government is going to provide health care to people one way or the other. It is like that in every single other Western democracy.

The requirement isn't fundamentally different from paying taxes that go to fund activities that a person finds immoral



I disagree.  There is no moral objection to paying someone wages which they then turn around and use to buy contraceptives or for any other immoral use (buy a gun and shoot someone).  That is akin to paying taxes.  The moral objection comes about because the employers money is being directly used to purchase contraceptives, even though the decision is made by the employee.  There is a fundamental difference between those situations.  In the first, the employer completely severes control over the funds so they can be used for anything and everything; in the second he defines how the funds can be used, strictly limiting their use.

It really is a waste of time to comment when you are merely shooting from the hip to hear yourself talk.

Hey Bill,

I agree.  I happy to correct any error I made.  I hope you enjoy the hunt.

Bruce - you continue your dribble as you state:  "The moral objection comes about because the employers money is being directly used to purchase contraceptives, even though the decision is made by the employee."

Really - let's see; I work for a Fortune 1000 corporation that pays me a salary that also includes medical coverage.  That coverage is paid for by both the employer's contribution and by my premium payments every pay day.

Medical coverage is just that - medical coverage.  That coverage may or may not be used to pay for prescirptions, check ups, illness, pain, cancer, kidney stones, contraceptives.  If it is used to pay for any of the aforementioned procedures to address these potential conditions, the employer has nothing to say about it and it is not an employer decision.  The employer merely provides medical plans that an employee can opt for - usually the employer pays a portion of the plan expense as does the employee.

But, decisions such as purchasing contraceptives, visiting the ER, etc. are NOT employer decisions NOR is the employer money being used DIRECTLY to purchase these medical services.  The employer's money is used to purchase a plan only - what the plan is used for, etc. is an employee choice (it is NOT a direct use of employer's money).

Any good catholic moral theologian can easily explain to you, Bruce, that this is not immediate or formal participation in evil by an employer (if you think that contraception is evil).  This, in fact, is another argument against the whole Becket Fund and certain USCCB bishops who conflate the use of medical insurance plans and what a covered individual may or may not decide to do with the insurance plan.

Bruce - your earlier citation/comment is actually borrowed from this column (which you did not give any attribution to, of course):

This is a legal interpretation - that is all;  it is an opinion that may or may not be correct.  It is not FACT (which is what I stated above). 

To argue that this SCOTUS decision is merely an application of Congress's Dictionary Act is really a stretch.......this decision (once SCOTUS gave specific family owned businesses religious freedom rights) hinged on the clause concerning whether the government could impose this burden or if there were less burdensome methods - thus, SCOTUS ruled that there are less burdensome methods (we will see if this is workable - doubt that insurars will agree to the solution that the administration used to cover contraception for religious charities, social agencies, etc. and really doubt that Congress would agree to pass a law that has the government pay for these contraceptives (geez, that would be like a single payer system for contraceptives).

George D,

The question of whether something is a good policy is different from the question something is a constitutional policy. For the most part, courts are supposed to be concerned about the latter. If Congress does something stupid, it is the responsibility of Congress to fix it.

The federal government is prohibited from covering abortion. State governments are allowed to cover abortion under Medicaid, but the cost of that coverage must be paid entirely by them.

This is better than anything Bruce comes up with:

Says it all.  Guess SCOTUS going forward will decide whose *biblical principles* are legal and accepted; and which ones aren't.  Should get interesting.


Regarding the decision itself: I've seen one or two news reports that note that the implications of the decision could be more far-ranging than the topic of contraception.  But I haven't seen any examples of what those implications could be.  Does anybody know what else this decision might enable?


Aren't we getting sidetracked by saying that Holly Body covers contraception but just objects to the coverage for four items? Isn't the real issue that an employer does not have to right to decide what is covered in their employess packages. Or is this too simple. Alito sounds good. But why do people or the govt. have to provide by other means. 

It seems like really bad law and the beginning of a lot of useless suits. 

Bruce - you continue your dribble as you state...

Hey Bill,  my favorite sport actually was Basketball.


Bruce - your earlier citation/comment is actually borrowed from this column (which you did not give any attribution to, of course):

But I actually didnt borrow from that article.  Haven't been to the Forbes website in years.  All of my quotes were from the actual Supreme Court Opinion which is located here.

Sorry that I confused you.




Jim Pauwels,

It's hard to say. Alito insists that it doesn't apply anything an employer cares to object to, but he doesn't provide any standard that would allow lower courts to make such a distinction.

In the final analysis this is a partisan decision. The legal niceties are contrived. It has nothing to do with religion. It shows that too many religious advocate use laws rather than persuasion to influence people. If the democrats get this across they may have a spectacular victory at the polls. I believe this will be spearheaded by women.

Hobby Lobby wins narrowly.

Their female employees lose broadly.


George D:  if her parents are on Social Security, they will automatically have Medicare A (for which there is no charge) and most likely, Medicare B (for which they have to pay).  However, their children are not covered by it, only the individual SS recipient.  The only exception would be if the child is permanently disabled and eligible in her/his own right, irrespective of age.  I had a mentally handicapped sister whose medical coverage for virtually all of her life was provided by disability SS.

It's amazing that vasectomies have escaped the scrutiny of the Theocratic Police.  The result of that little pinking shears activity is a permanent prevention of pregnancy (unless the guy's wife/etc. is playing around ... of course, that wouldn't happen) and most certainly as egregious as abortion.  Or is it just OK because, wink, wink, it is a male thing?


Us intrinsically disordered types sure can learn a lot from the proponents of Traditional Marriage.  Yes, indeedy!

Bruce stated:  “ … in the second he defines how the funds can be used, strictly limiting their use.”

I was a Benefits Manager for many years in a variety of different companies, and we ALWAYS, as did virtually all companies that I ever heard about, sold the cost of providing benefits as part of the employee’s total compensation package.

No company can tell employees where they can and cannot go on company-paid vacations, or on paid national holidays.

No company can tell employees how and where they can retire on their company-paid pension benefits, just when.

No company can tell employees into which of the employer-enumerated 401k investment options that the employee could invest their monies in order to enjoy the company matching contributions.  (I know of no 401k plan that has investment options that are not eligible for company-matching contributions, but things may have changed in the last 10 years.)

Why, then, should companies get away with telling employees how to spend health care benefits dollars, the cost of which is usually (but not always, i.e., many unionized situations) shared albeit unequally between employer and employee?

The Supreme Court said that Bush v. Gore is not to be cited as precedent in any later cases.

Roberts found the Affordable Care Act constitutional because a mandate is the same as a tax.

Alito said that the Hobby Lobby ruling applies only to these particular plaintiffs.

Translation: Don't ask us how we arrived at our decisions, because we're making things up as we go along and we CAN'T explain them.

For the record, my husband and I once had to declare bankruptcy because of medical bills our insurance company refused to pay; we're now on Medicare; and we think Obamacare is fine as far as it goes, but we favor Medicare for all.



"It's amazing that vasectomies have escaped the scrutiny of the Theocratic Police.  The result of that little pinking shears activity is a permanent prevention of pregnancy (unless the guy's wife/etc. is playing around...of course that wouldn't happen) and most certainly as egregious as abortion.  Or is it just OK because, wink, wink, it is a male thing?"

My understanding of this ruling is that the contraceptive methods which won't be covered were objected to because of their possible abortifacient effects (whether all of them actually are abortifacient is a question for another day).  There is no way that vasectomy could be abortifacient by any definition. Same thing with tubal ligation. I have not heard that tubal ligation was excluded from coverage, either. As far as vasectomy/ tubal ligation being as egregious as abortion, I'm prettty sure even the Church doesn't go that far; they still consider it a sin, but not killing.  Just a little quibble of mine, because so- called sterilization is frequently lumped in with abortion as far as degree of wickedness.  Actually both vasectomy and tubal ligation are permanent barrier methods which are objected to by the Church because they are contraceptive rather than abortifacient.