Hobby Lobby symposium: A decision based on conclusory assertions and results-oriented reasoning

Marcia D. Greenberger is co-president of the National Women’s Law Center, which filed an amicus brief in support of the government.

There is no doubt that Monday’s majority decision in Burwell v. Hobby Lobby was stunningly bad for women’s health and starkly dismissive of women’s own religious beliefs.  In holding that the federal Religious Freedom Restoration Act (RFRA) allows at least some for-profit corporations a license to discriminate against their female employees by overriding those employees’ rights to contraceptive coverage, the Court’s majority presented precious little analysis of central facts or key legal principles.  The result was, as Justice Ginsburg’s dissent aptly noted, “a decision of startling breadth.”

1)     While the majority assumed the presence of a religious belief, it should not have similarly simply assumed that the belief was substantially burdened

After deciding that RFRA extends to at least family-owned, closely held corporations, the majority turns to whether there is a “substantial burden” on those corporations’ exercise of their religious beliefs.  The presence of a substantial burden requires a factual predicate and then ultimately presents a legal issue for the Court to decide.  But instead of analyzing the facts and the law as to the nature of the burden, the majority simply defers entirely to the objecting companies’ assertions of the existence of a burden.

Taking as a given the companies’ sincere religious beliefs that certain forms of contraceptives cause abortions (even though scientifically and medically inaccurate as outlined here), the majority seriously errs by then also taking as a given the companies’ claim that the insurance requirement for their employees imposes a substantial burden.  According to the majority, the burden is substantial because the companies say it is.  The majority undertakes no legal analysis of this burden claim, although it also dismissed as unpersuasive arguments not fully briefed before the Court about whether the company could choose not to provide health insurance and instead pay a relatively small tax as a simple way to avoid providing the contraceptive coverage, with the employees then able to secure the full coverage on the insurance exchange.

Justice Ginsburg did “undertak[e] the inquiry that the Court forgoes,” concluding that there is no substantial burden.  All the companies must do is allow an insurance plan to include contraception along with many other benefits, but the decision about whether to use the birth control benefit rests with the female employee and her health care provider, not the company’s owners.  It is equivalent to paying an employee a salary that the employee can then use to purchase birth control.  As Justice Ginsburg’s analysis demonstrated, any burden is simply too attenuated to be considered substantial.

2)     The majority assumes a compelling interest, thereby not addressing the importance of birth control for women’s health and the course of their life

The next major legal issue in the case also gets short shrift from the majority.  Justice Alito states that he will “assume” that the government’s interest in providing contraceptive coverage to women is compelling.  As Justice Ginsburg notes, “Perhaps the gravity of the interests at stake has led the Court to assume . . . that the compelling interest criterion is met in these cases.”

By assuming rather than addressing the compelling interest, however, the majority avoids an analysis of the impact of birth control on women’s health and lives.  It allows the majority to avoid any mention of how birth control reduces unintended pregnancy and improves women’s health and the health of any children they might have.  It allows the majority to avoid discussion of how birth control treats certain medical conditions women may have and is directly linked to women’s social and economic opportunities.  (Our brief to the Court  explains these benefits in much greater detail.)  As a result, the opinion dealt only with the perspective of the company and not the impact on  women.

3)     The majority assumes that the effect of extending the accommodation “would be precisely zero” on the women employees

Again without a factual basis or legal analysis, when considering whether the coverage requirement was effectuated via the “least restrictive means,” the majority assumes that the government can provide this coverage through the accommodation offered by the administration to non-profit religious organizations.  (Under the regulatory framework implementing the contraceptive coverage requirement, a non-profit, religious organization can self-certify that it objects to providing the coverage and send the certification to the insurance company, which then provides the coverage directly to the female employees, so that the women get the benefit directly from the insurance company, not the objecting employer.)  Justice Kennedy wrote separately to underscore the appropriateness of the accommodation.  In his concurring opinion, he said that the accommodation provides “an existing, recognized, workable, and already-implemented framework to provide coverage.”

The nature, contours, effectiveness, and appropriateness of the accommodation were not even briefed before the Court.  Moreover, the accommodation has not been in effect long enough to determine whether it is actually working for women, let alone with “precisely zero” effect.  By its very nature, the accommodation separates this basic women’s health care need from routine coverage for health care, thereby inserting extra steps and potential complications.  Moreover, the accommodation itself is being litigated in courts across the country in almost forty lawsuits brought by non-profit organizations.  The non-profits are claiming that the accommodation itself violates RFRA, and no doubt it is only a matter of time before the Court will rule on its validity.  These challenges are known to the Court, since it has already weighed in – granting an emergency injunction pending appeal in one non-profit case in January  and granting a similar temporary injunction on Monday night.

While Justice Kennedy’s support of the accommodation could signal trouble for the non-profits seeking to invalidate it, the majority’s view that it is the solution for these for-profit companies is not based in fact nor sound in principle.

4)     The majority simply asserts this decision is limited

Both Justice Alito’s decision and Justice Kennedy’s concurrence emphasize that this decision is limited in its scope, that other health care services such as immunizations or blood transfusions need not be implicated, and that other non-discrimination laws are not necessarily open to the same challenge.  It is cold comfort to women to be assured that only their right to essential contraceptive care will be undermined.  But it is also of little assurance that the majority provides such skimpy legal analysis to bolster the limited nature of its decision.  The short shrift the majority gives to the legal analysis of this assertion underscores the decision’s doctrinal weakness and makes this decision even more of a bitter pill for women to swallow.