Civil and Human Rights

After Hobby Lobby, contraception fight continues

By Stephanie Condon


The Supreme Court on Monday handed down a clear victory for religious conservatives when it ruled that closely-held companies like Hobby Lobby don’t have to follow the Obamacare mandate requiring large firms to help pay for their employees’ birth control.


However, the conservative challenges to the Obamacare rule don’t end there. If anything, conservatives say that the majority opinion penned by Justice Samuel Alito — while intended to be narrow in scope — suggests the court could extend protections for religious freedom even further.


“I hope it’s a harbinger of good things, an indicator that people of good faith like the Greens and the Hahns can and should stand up for what they believe in,” Chuck Hurley, vice president and chief counsel for The Family Leader, told CBS News.


The Court agreed with the Greens and the Hahns that the contraception mandate placed an undue burden on small for-profit companies like theirs — but it has yet to rule on whether nonprofits are being unduly burdened. Several religious nonprofits are challenging the law, even though the Obama administration last year found a way to try to accommodate their concerns.


According to the compromise policy the administration put forward, nonprofit faith-based organizations can notify their insurer or third-party administrator if they object to paying for contraception costs on faith-based grounds. The insurer then has to provide enrollees with contraceptive coverage through separate individual health insurance policies.


Several nonprofits — such as the Colorado order of nuns the Little Sisters of the Poor — say this accommodation doesn’t settle their concerns. Last New Years Eve, Justice Sonia Sotomayor issued an injunction to prevent the administration from enforcing the rule against the Little Sisters while their case makes its way through court. The Little Sisters’ case, along with several others, are currently in various courts of appeal. Federal appeals courts have already rejected challenges from two nonprofits — the Michigan Catholic Conference and Catholic Family Services, and the University of Notre Dame — meaning the Supreme Court could take up the nonprofits’ case as early as its next term.


Kevin Walsh, associate professor of law at the University of Richmond School of Law who is serving as continuing counselor to the Little Sisters of the Poor, told CBS News that the Hobby Lobby ruling is “a promising decision for [nonprofit] challengers.”


For one thing, the Supreme Court “knocked out” the administration’s leading arguments for why the contraception rule is not a “substantial burden” on religious entities, Walsh noted. If there is a substantial burden, the Religious Freedom Restoration Act (RFRA) dictates that the government must have a “compelling interest” for imposing that burden, and it must do so in the least burdensome way possible.


“In Hobby Lobby, the court assumed that the government had a compelling interest” to ensure women have access to comprehensive contraception coverage, Walsh explained. “The Supreme Court didn’t say they did, didn’t say they didn’t… that will still be a live issue in the lower court cases still pending.”


When it comes to offering a less burdensome alternative, legal experts are trying to parse what Alito had to say about the treatment of for-profit companies.


Alito wrote in the Hobby Lobby opinion that the government may simply have to provide contraception coverage on its own — the RFRA, he wrote, “may in some circumstances require the Government to expend additional funds to accommodate citizens’ religious beliefs.”


At the same time, the justice pointed to the accommodation granted to nonprofits as an example of a less burdensome policy. “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs,” Alito wrote.


While that may sound like an endorsement of the administration’s policy for nonprofits, Alito explicitly added, “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.”


“What we have from the majority opinion cuts both ways,” David Gans, the civil rights director for the Constitutional Accountability Center, told CBS News. 


“Alito’s opinion seems to look to the accommodation as a less restrictive alternative that provides this accommodation to religious groups so they don’t have to pay at all for the contraceptive care to which they have an objection,” he added. “On the other hand, his opinion sort of leaves open the Little Sisters’ challenge.”

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