On the last day of June, the U.S. Supreme Court once again attempted to negotiate the briar patch of the politics of religion without getting stuck. In the view of four justices, however, their effort failed. First, what the majority decided.
Burwell et al. v Hobby Lobby Stores, Inc. et al. (which also incorporated Conestoga Wood Specialties Corp. et al. v. Burwell) involved two closely held corporations whose owners and senior company executives chose to bring their faith and the moral values it inspires into their company board rooms. These values include strong convictions about the beginning of life, leading to firm opposition to abortion.
Because they are for-profit corporations with a significant number of employees, they are not exempt from the provisions of the Affordable Care Act requiring, among other things, that they provide health insurance coverage to their employees and that this coverage include coverage of all FDA-approved forms of contraception.
Four of these FDA-approved methods (two so-called “morning after pills” and two intrauterine devices) may not, in fact, be contra-ceptive. That is, they may not prevent conception; they may work to prevent a fertilized egg from advancing successfully along the path of pregnancy. Put succinctly, some would say that these methods abort pregnancies, rather than preventing them.
Entirely legal, of course, and, according to the FDA, “safe.”
But for the owners of Hobby Lobby and Conestoga Wood Specialties, their use is an immoral taking of an innocent human life. As the syllabus of the majority opinion notes, the owners’ participation, not in procuring an abortion itself, but in facilitating access to that choice for their employees, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is immoral for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.”
The owners of these companies are being required to provide health insurance coverage. Providing health insurance is an innocent act in itself; indeed, it may well be morally praiseworthy. But the specific requirements of the law compel them to provide their employees with free access to what the owners understand to be methods of abortion. Even if these owners never encourage any employee to have an abortion and never choose it for themselves or their loved ones, providing this coverage makes it easier for their employees to choose abortion as an option. This puts the company and its owners in the position of facilitating unjust killing, as they understand the matter. Such a facilitative role, the owners concluded, would be immoral.
The majority opinion, without opining on the merits of these religious convictions, recognized that they were sincerely held, that the logic that led from belief to action was not flawed, and that, even though these are “corporations,” they are “persons” for purposes of the protections provided for the free exercise of religion under the Religious Freedom Restoration Act of 1993 (signed by then-President Bill Clinton) and the Religious Land Use and Institutionalized Persons Act of 2000 (also signed by then-President Clinton). These particular corporate “persons,” while established for the purpose of profit, also have maintained their purpose of operating in accordance with the religious values of their principals, and, consequently, have “exercised” religious preferences and cannot be unreasonably compelled to abandon them.
Importantly, the ruling does not repudiate the Affordable Care Act itself; what has been rejected is a rule promulgated by the Department of Health and Human Services to implement the act. The ruling also does not reject the notion that contraceptive care, including these four contested methods, is consistent with the pursuit of a compelling state interest. Indeed, it appears that all of the justices accept that assertion.
The issue at law on which the majority opinion hinges, once it established that a closely-held corporation is a “person” in the terms of the relevant laws, is whether the rule requiring these companies to include these four contested forms of contraception imposes the least practical burden on the exercise of religious freedom in pursuit of the compelling state interest. On that question, the majority found that other methods could be devised (and at least one already exists) by which the government could ensure that the compelling state interest was protected without burdening the companies’ religious freedom at all.
Next: The Concerns of Dissenters in Burwell v Hobby Lobby