The Hobby Lobby decision has left many feeling like they’ve been kicked in the gut. But if you want someone to blame, look to the Obama administration’s inconsistent handling of the Affordable Care Act. The Court’s majority opinion is littered with references to how Health and Human Services (HHS) has administered the ACA so far.
First up: Is a corporation a ‘person’ with religious freedom? The Religious Freedom Restoration Act (RFRA) was written for ‘persons,’ which is legally different from ‘natural persons’ or ‘individuals.’ The legal definition of ‘person’ includes groups, clubs, corporations, and other groups.
The Court said that the HHS conceded the point that corporations are persons with religious rights when the HHS gave religious exemptions to non-profit corporations. The majority said, “no conceivable definition of ‘person’ includes natural persons and nonprofit corporations, but not for-profit corporations.” By giving religious exemptions to some corporations, they could not claim that a person is only an individual and not a corporation.
Second, if corporations are persons, then is paying for contraceptive coverage a ‘substantial burden’? Again, the HHS actions say, “yes!” They could have told churches and religious non-profit corporations to pay for complete coverage, including contraception, since paying for insurance isn’t the same as paying for contraception. Instead, HHS let religious groups out of paying for coverage and devised a process for letting this happen. In short: HHS was letting religious groups off the hook based solely on the religious group’s unquestioned belief that paying for coverage would be a substantial burden. But when Hobby Lobby and Conestoga Woods made the same claim, HHS said it wasn’t a substantial burden. The Court said that HHS can’t have it both ways.
Finally, was there another way, a ‘least restrictive means’ to provide coverage? And could this be done without sharing the cost with employees? HHS came up with a clever solution. It’s not ideal. Indeed, it could be called a shell game (or robbing Peter to pay Paul). HHS let non-profit organizations opt out of coverage if they registered that exemption with the HHS. Insurance companies were then required to absorb this cost—coverage had to be provided at no charge to employers or to employees. HHS then compensated insurance companies by reducing the fees that insurance companies had to pay to be in compliance with the ACA. Thus, the government effectively paid for this coverage.
But with Hobby Lobby and other businesses, HHS said that the only solution was to require the corporations to pay. Yet, HHS already found a less restrictive way to do this; so, the Court said they could do the same for for-profit corporations.
All told, if you can’t believe that the Court’s decision, look aghast at HHS. In a case in which HHS is a party, the actions of HHS became evidence against their claims.
Other well-reasoned arguments could still be made to justify HHS’s actions.
Justice Ginsburg’s dissent looked at the same questions and came up with different conclusions. Justices Ginsburg and Sotomayor dissented on the question of ‘personhood’, saying that there was precedent for giving religious exemptions for religious non-profit corporations only (notably, Justices Breyer and Kagan did not echo this point). Ginsburg also gave reasons for seeing the ‘contraceptive mandate’ as something short of a substantial burden and the ‘least restrictive alternative’ as illusory. Unfortunately for Ginsburg and those outraged at the majority decision, the HHS’s own actions made these counter-arguments much harder (if not impossible) to make in this case.