President Obama quipped the other night that he is so close to Vice President Biden that they can't buy a pizza in Indiana--an obvious reference to Indiana's religious freedom law permitting businesses in the state to refuse goods and services to gays on grounds of religious scruple. The recent flap in Indiana and Arkansas over religious freedom legislation, which would authorize discrimination against gays, denial of certain forms of healthcare to employees or otherwise infringe on rights embedded in the fabric of the Constitution, when required to do so by religious belief is a direct reflection of the 5-4 opinion of the Supreme Court last year in Burwell v. Hobby Lobby. Hobby Lobby dealt with the right of an employer on religious grounds to deny Obamacare coverage to its employees if that coverage included contraceptive devices, which the employer deemed to be abortifacient.
If the Court can't make it illegal for women to avoid being pregnant, it seems determined to make it as difficult as possible for them to go freely about their reproductive lives. The Founding Fathers formed the government, among other things, "to promote the general welfare." In Hobby Lobby, however, the Court's five conservative Justices don't appear to have gotten the memo.
The owners of Hobby Lobby, a highly profitable retail arts and crafts operation, adherents of a fundamentalist Christian faith, oppose abortion as they consider that life begins at the moment of conception. At the heart of their suit, invoking the federal Religious Freedom Restoration Act (RFCA), was that FDA approved contraceptive coverage, available under the Obamacare mandate, included four measures that plaintiffs regarded as abortifacient: two forms of emergency measures known as "morning after" pills, and two forms of inter-uterine devices (IUD). Hobby Lobby claimed that the four demonized devices did not operated to prevent conception, but prevented the fertilized egg, the zygote, from attaching to the uterine wall.
Obamacare provides comprehensive healthcare to an estimated 18.7 million American women who previously had no form of health insurance. In the winter of 2013, when Obamacare kicked into gear, approximately one in five women ages 18-64 were uninsured. For low- income women and minorities, the gaps were even wider with four in ten uninsured as of the end of 2013. Nearly a quarter of Black women and over one-third of Latino women were also uninsured. The law mandates all firms with more than fifty employees (except for not-for-profit religious organizations) to provide healthcare insurance that includes birth-control coverage, or else pay a fine. The government had exempted certain religious not-for-profit corporations, such as churches or associations of churches, from compliance with the mandate. It required, however, money-making companies, such as Hobby Lobby to provide contraceptive coverage. The issue in the case was that Obamacare required Hobby Lobby to afford its female employees (and, presumably, the female family members of employees) with healthcare insurance coverage that included the cost of all forms of contraception approved by the FDA, including the four challenged devices. Hobby Lobby, a closely held for-profit corporation sought to opt out of the contraceptive coverage featured in Obamacare on the basis of religious scruple. The Supreme Court, in a 5-4 decision, answered that they could do so.
Hobby Lobby is a chain of retail outlets operating 575 outlets nationwide. It has roughly 23,000 employees. Presumably at least half are women, and many more are married to women. It is not known how many employees or employees' spouses, if any, had religious objections to coverage for the cost of contraceptive services. Most, if not all, may have even welcomed the benefit since women of childbearing age spend 68% more in out-of-pocket healthcare than men.
Measuring whether there was a justification for burden on free exercise of religion under RFCA, the Court was required to determine whether there was a "compelling governmental interest," the buzzword used in RFCA, in covering women for contraceptive services as part of healthcare, and the majority of the Justices "assumed" that one existed. The Supreme Court had already stated there was a compelling governmental interest in that, in reaffirming Roe v. Wade, it said: "The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives."
It's not just about a casual sexual encounter, resulting in pregnancy, that gives birth to second thoughts about carrying a child to term. Pregnancy, experts say, can be hazardous or life threatening for certain women, particularly those with some congenital heart diseases, pulmonary hypertension and Marfan syndrome. In some cases pregnancy is associated with cancer, pelvic pain or menstrual disorder. The two IUDs at issue were stated to be more effective, and also more costly than other contraceptive methods as to which Hobby Lobby took no exception. As Justice Ginsburg noted in dissent, "the cost of an IUD is nearly equivalent to a month's full time pay for workers earning the minimum wage."
Under the dangerous rationale of the Supreme Court's majority, a company could refuse to cover any form of contraception on religious grounds. On the same grounds, it could engage in racial or gender discrimination. It could refuse to hire gays or afford HIV coverage. It could, like a health club company in Nevada, refuse to hire a heterosexual couple living together out of wedlock. While the Court appeared to carve the tax laws out of its ruling, the rationale would be the same: a fundamentalist Christian could withhold that portion of his income taxes that represents subsidies paid by Obamacare for contraceptive services deemed abortifacient.
That human life begins at the moment of conception is the accepted teaching of the Roman Catholic Church. It is not uncommon for protesters to pray the rosary outside abortion clinics. This view is shared by Orthodox Jews, the Mennonite Church, and many fundamentalist Christian religions. The Mennonite Church, which has 110,696 members in the United States and 950 congregations, categorically opposes abortion. This would create an issue for them as to the four contraception devices at issue, if they indeed operate to destroy the zygote, a fertilized egg.
When a plaintiff makes a claim that something transgresses a tenet of her religion, the law is that the courts will assume that the belief is sincerely held. Furthermore, courts will not pass on the plausibility of a religious claim. So the Supreme Court never went into the question whether the four devices were in fact abortifacient, and that plaintiffs were deluded in voicing their objection, any more than a court would go into the plausibility of a belief in the Immaculate Conception. Although there was nothing in the Court's opinion on it, medical experts say that the four devices at issue primarily operate to prevent conception, and not to destroy a fertilized egg.
Justice Scalia, voting with the majority, appeared eager to buy the abortifacient claim hook, line and sinker. As he ejaculated in oral argument after grilling the government attorney about the cost to the government of providing the services should the plaintiffs be exempted from furnishing the coverage, "You're talking about, what, three or four birth controls, not all of them, just those that are abortifacient." (Transcript at 66).Unfortunately for Scalia, there was nothing in the record to show that the four "birth controls" at issue were in fact abortifacient. They were simply claimed to be so by the fundamentalist plaintiffs. And even if they were abortifacient, should the dissident religious beliefs of the Hobby Lobby employers place a burden on their employees' coverage that is distinct from the healthcare programs of employers throughout the country. As the venerable English jurist, Lord Ellenbourough, famously and rhetorically wondered in an 1808 case involving extraterritorial jurisdiction of a default judgment, "Can the island of Tobago pass a law to bind the rights of the whole world?"
It is strange (or perhaps not so strange) that Scalia came down doctrinally on the side of the religious dissenters in Hobby Lobby. In a 1990 case, Employment Division v. Smith, he had rejected the claims of fired employees for unemployment compensation where the employees had illegally ingested peyote for sacramental purposes at a ceremony of the Native American Church. The employees claimed that the use of peyote was central to their religion. "What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is 'central to his personal faith?" Scalia wondered rhetorically. He cited with approval an 1879 case for the proposition that neutral laws governing actions and practices, as opposed to religious beliefs and opinions, must trump faith or every religious objector becomes "a law unto himself." Seems like trite law. But, as Scalia said in another context, involving the free speech rights of anti-abortion protesters and counselors under the First Amendment, where he had railed at the majority for allegedly ignoring a settled precedent in giving abortion rights advocates a free pass: "What has changed since then? Quite simple: This is an abortion case, and [the settled precedent] was not." It is apparently the view of Scalia, and the four other male Catholics voting with the majority in Hobby Lobby, that laws of general application trump religious freedom, and religious dissidents cannot be a "law unto themselves" unless of course "[it] is an abortion case." The peyote case obviously was not.
Justice Ginsburg and the other dissenters saw the majority decision as one of "startling breadth" that would allow for profit corporations to opt out of almost any law that their owners found to be "incompatible with their sincerely held religious beliefs." The decision would "deny legions of women who do not hold their employers' beliefs access to contraceptive coverage." Could a corporation based on the religious beliefs of its owners now discriminate in its hiring practices on the basis of race? Could such a corporation refuse to hire individuals based on religion, sexual orientation or immoral sexual conduct? Could it avoid environmental laws based on sincerely held religious tenet? Could they end up being a "law unto themselves?" The majority says their ruling is not so broad as all that. Just limited to abortifacients for the time being. The legislatures in Indiana and Arkansas picked up the Hobby Lobby ball and ran with it.
Ginsburg noted in dissent that Jehovah's Witnesses object to blood transfusions, Scientologists object to antidepressants. Christian Scientists object to vaccinations. Some Muslims, Hindus and Jews object to medications "derived from pigs, including anesthesia intravenous fluids and pills coated with gelatin." Remember, no employee of Hobby Lobby was required by the government to engage in contraception. That would be, as Ginsburg put it, "the woman's autonomous choice informed by the physician she consults." It was the religious fundamentalist employers (not the government) who objected to paying the freight for insurance coverage that included the cost of objectionable contraceptive services. Employers in the bedroom just as we are getting the government out? "We have to have the baby, Joe," she says to her husband, "it's our duty to the boss." The approach smacks of Orwell's 1984.
The Court upheld plaintiffs' claims to an exemption from the contraceptive mandate of Obamacare because the mandate "substantially burden[s]" the exercise of religion. As we have seen, the Court assumed the obvious without deciding that the mandate was "in furtherance of a compelling governmental interest," namely guaranteeing cost-free access to the four contraceptive methods. But, it then held that the "least restrictive" way to achieve the government's goal would be an "accommodation." The government itself could underwrite the cost of providing the four contraceptives to women who want them, but can't obtain them because of their employers' religious objections. Alternatively, the government could treat the religious dissenters as it does a church, namely, allowing the religious employer to send a piece of paper to the insurer, certifying that it opposes funding contraceptive services on religious grounds, and then making the insurer cover these services separately at no additional cost to anybody. As Scalia said at oral argument "[Abortifacient] that's not terribly expensive stuff, is it?" (Transcript at 66).
Sounds reasonable enough--an accommodation so that Hobby Lobby's employees may receive the same healthcare benefits as those down the street. All that Hobby Lobby need do is fill out a simple form with name, rank and serial number. Writing for the Court, Alito said that, "The effect of the ...accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be zero."
Unfortunately, there is more to the story. In an almost unbelievable sleight of hand, the Court, three mornings after the Hobby Lobby decision, granted a preliminary injunction in a separate case brought by Wheaton College, a non-profit evangelical Christian institution of higher learning. Wheaton contended that its religious liberties were burdened by the requirement that it provide contraceptive coverage for its employees, and asked the Court for permission to ignore the accommodation for the time being while challenging it in the courts. It was too much of a burden on religion, Wheaton claimed, to send a form to the insurer; all it wished to do is notify the government with a phone call. This sudden turnabout, which many have found baffling, was so out of line with the accommodation the Court had blessed three days earlier that it led Sotomayor to sizzle in dissent. Writing for herself and her two women colleagues, she launched a broadside attack on the majority position: "Those who are bound by our decisions usually believe they can take us at our word. Not so today. After expressly relying on the availability of the religious-nonprofit accommodation to hold that the contraceptive coverage requirement violates RFRA as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might...retreats from that position. That action evinces disregard for even the newest of this Court's precedents and undermines confidence in this institution."
The hostility of the Court's conservative majority to abortion rights could not be clearer. The conservative Justices are just salivating for a case where they can overrule Roe v. Wade. In McCullen v. Coakley, a fact specific free-speech case, decided just a few days before Hobby Lobby, the Court unanimously struck down a Massachusetts law creating an overly broad 35 foot buffer zone around abortion clinics within which protesters and counselors could not attempt to talk women out of exercising their reproductive rights. There is something ugly and offensive about a stranger approaching a woman seeking an abortion and asking her whether she has thought about her decision enough, and has explored all the alternatives. And there is an element of, as Professor Chafee put it almost a century ago: "Your right to swing your arms ends just where the other man's nose begins."
To fairly compete in the marketplace of ideas, and be truly free, speech must be robust and provocative and even disagreeable. The First Amendment protects annoying and disturbing and salacious speech as well as a flag waving speech on the Fourth of July. As Holmes put it in his famous dissent in United States v. Schwimmer, "freedom for the thought we hate." And the scorned and rejected of all stripes, expressing bad ideas and distributing revolutionary pamphlets, have exercised their free-speech rights on public streets since the dawn of the republic.
The Court held the Massachusetts statute unconstitutional since the buffer zone could have been more narrowly drawn. Fifteen feet might have been buffer zone enough. In an unprecedented move, the Court even "suggested" that Massachusetts could consider an ordinance such as that adopted in New York City, that not only prohibits obstructing access to a clinic, but criminalizes following and harassing "another person within 15 feet of the premises of a reproductive facility." Really bizarre! The Court advising the legislature on what legislation might pass muster.
Justices Alito, Thomas, Kennedy and Scalia took occasion in separate concurring opinions to blast what they saw as favored treatment for abortion rights activists. They thought the whole set-up abridged free speech, and was flat out unconstitutional. "Today's opinion carries forward this court's practice of giving abortion rights activists a pass when it comes to suppressing the free-speech rights of their opponents," Scalia thundered in his characteristically mordant style, "There is an entirely separate, abridged edition of the First Amendment applicable to speech against abortion." This is a call for freedom for the thoughts we love, not only within earshot but in your face.
The bottom line. Cases like Hobby Lobby and Coakley are not about law at all; they are about policy. The Court is trying to draw some lines (courts do that) that make sense for everyone. Thirty feet abridges free-speech rights; 15 feet probably does not. Protected life begins at conception or three months after conception or six months after conception or whatever. Such lines are found nowhere in the Constitution, but it is for the judicial department to tell us what the law is, and you may draw your own conclusion as to whether it is doing a good job.
Religious fundamentalism is alive and well in the Supreme Court, and abortion rights are an endangered species. The interesting thing is that the terms "abortifacient," "Obamacare mandate," "accommodation," "buffer zone" or "contraceptive" were all unknown at the time of the Constitution. And there probably isn't much that the Constitution has to do with any of it. What the Justices have done is spin out policy judgments that satisfy their particular ideological or religious leanings. And, from all indications, they will continue to do so.
Meanwhile, Indiana and Arkansas are giving their "religious freedom" laws a rethink since powerful corporate interests think they are bad for business.
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James D. Zirin, author of The Mother Court, is working on a new book about religion and the Supreme Court.