Hobby Lobby – Part 2: Do Religions Get Their Own Facts?
By Wendy K. Mariner, JD, MPH, LLM; Edward R. Utley Professor, Health Law, Bioethics & Human Rights

Daniel Patrick Moynihan famously said, “Everyone is entitled to his own opinion, but not to his own facts.”  When it comes to federal law, however, some people with religious beliefs may indeed be entitled to their own facts. The U.S. Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby Stores, Inc. certainly leaves this impression. By allowing the corporations and their owners to determine what counts as a substantial burden on their “exercise of religion,” the five Justices in the majority appear to have removed that question from judicial review. This has serious implications for future claims that RFRA excuses corporations from complying with neutral and generally applicable federal laws.

Having decided that corporations can exercise the beliefs of their owners (or considering corporations and owners as one and the same – see Part 1 of this blog), and having assumed that the government has a compelling interest in women’s health and equality, Justice Alito’s opinion for the majority addressed whether HHS regulations (including all FDA approved contraceptives and services among the required preventive services that must be covered without cost-sharing) substantially burdened the corporations’ or owners’ exercise of religion under RFRA.

In First Amendment cases, the burden is on the religious claimants to demonstrate that a law burdens their free exercise of religion. The issue is a legal one for the court to decide. In Hobby Lobby, however, the majority just takes the word of the Hahns and Greens that providing health insurance covering four contraceptives substantially burdens the corporations’ religious freedom.  The individual claimants believe that life begins at conception and that four items – IUDs, Plan B, and Ella – terminate life (cause abortion), because they mayinterfere with implantation. Their belief is contrary to the great weight of medical opinion, which defines pregnancy as implantation of an embryo; moreover, there is little, if any, evidence that Plan B or Ella prevents implantation. As Judge Briscoe noted in dissent in the 10th circuit decision, the Greens’ belief “is not one of religious belief, but rather of purported scientific fact, i.e., how the challenged contraceptives operate to prevent pregnancy.” Alito omits any mention of science, repeatedly characterizing the contraceptives as drugs that “may result in the destruction of an embryo.”

Of course, none of the Justices is interested in disputing the sincerity of religious beliefs, and rightly so. Neither do they want to get embroiled in whether a particular belief is central to religious doctrine. But the Justices are supposed to decide the distinct legal issue – whether a law burdens religious beliefs. So, how does the so-called contraceptive mandate burden any religious belief? The court says the “Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.” The Hahns also claim “it is immoral and sinful for [them] to intentionally participate in, pay for, facilitate, or otherwise support these drugs.”

The key word here is “facilitate,” a conveniently vague term. So, how does the law “facilitate” sin? It doesn’t. HHS regulations do not require individuals or corporations to change their beliefs or to use contraceptives. The ACA does not require an employer to pay employee health plan premiums. Hobby Lobby and Conestoga are not obligated to use any of their own funds to pay for contraception coverage. The ACA only requires employers with at least 50 employees and non-grandfathered plans to choose between including preventive care in employee group health insurance plans and paying a fee or tax (but only if an employee obtains subsidized insurance from a health insurance exchange).

So, the sinful “facilitation” boils down to “arranging for” a compliant health plan.  Such a requirement has, at the very most, an indirect effect on believers. Braunfeld v. Brown, 366 U.S. 599 (1961) (a free exercise decision described below), counsels that such an indirect effect does not burden the free exercise of religion. Indeed, it is even more indirect than in Braunfeld. The decision to use a particular contraceptive is up to each woman of relevant age and medical condition, and she makes that decision on the basis of a physician’s judgment and recommendation – and not a government requirement. Hobby Lobby is no more complicit in that decision than it would be if a man chose to undergo heart surgery covered by the employee plan and died in surgery. And, as Professor George Annas commented, we can be confident that the corporation would not consider itself to have facilitated the termination of human life if a woman died in childbirth covered by its health plan.

Alito’s opinion does not engage in any analysis of the legal question. Instead, it falls back on the judiciary’s unwillingness to question the content of any religious belief. It simply concludes that if the corporations and owners believe that their religious beliefs are substantially burdened, it must be so. This suggests that courts must now accept a claimant’s view of what counts as a substantial burden. Since claimants will always believe they are substantially burdened, the only way for government to defend a neutral and generally applicable law against a RFRA challenge is to present an overwhelmingly compelling governmental interest that absolutely cannot be achieved without burdening someone’s religious beliefs (as they see it). That is a nearly impossible test to meet.

According to Alito’s opinion, the real burden seems to be the potential costs to the corporations if they fail to offer qualifying health plans.  (One wonders why the Hahns and Greens should not be personally responsible for these costs if it is their personal beliefs that dictate the choice.) Of course, many federal laws impose costs on corporations. If cost is a burden (and substantial cost is a substantial burden), think of the laws that could be said to burden religion. Although Alito says tax laws require uniformity and are likely to be justified, nothing in his reasoning supports that assertion. Taxes are costs and they burden corporations. (And, in oral argument, the Chief Justice quipped that Justice Sotomayor was right that the “penalty” Hobby Lobby feared was really a tax.)

Braunfeld (on which the majority relies to permit Hobby Lobby to bring its RFRA claim) is instructive here. On the merits, the Court rejected the claims of individual Orthodox Jewish merchants that Pennsylvania’s Sunday closing law (with criminal penalties) violated their free exercise of religion. The merchants argued that the law forced them to choose between (1) observing the Sabbath and opening their retail businesses on Sunday instead of Saturday, and (2) closing on Sundays and losing considerable revenue to competitors. Although the Court conceded that the merchants would be burdened economically, but upheld the law as applied to them, because the burden was indirect; cost was not relevant. The law “simply regulates a secular activity and, as applied to appellants, operates so as to make the practice of their religious beliefs more expensive.” 366 U.S. at 605. The Court concluded that “it cannot be expected, much less required, that legislators enact no law regulating conduct that may in some way result in an economic disadvantage to some religious sects and not to others because of the special practices of the various religions.” Id. at 606-7.

As Justice Ginsburg argued, a burden on religion must be weighed against the harm to others from allowing believers to deprive them of government protection or benefits. Alito’s opinion entirely ignores the harm that granting a religious exemption imposes on women.

One person’s religious freedom can be another person’s oppression. Anti-discrimination laws exist to prevent discrimination based on erroneous assumptions about people. With the Hobby Lobby decision, RFRA now offers opponents of federal law opportunities to avoid compliance by alleging conflict with religious beliefs. If the courts leave it to these opponents to decide when they are being substantially burdened, it will be difficult to enforce the law fairly and uniformly. Employees – especially women – will be deprived of government protection. Alito’s caution that courts can identify pretextual claims offers little solace here. There is no need for pretext when you can make up your own facts.

Professor Wendy Mariner

This article was originally published on HealthLawProf Blog.

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