fb-pixel Skip to main content

The Supreme Court decision on Monday that curtailed the federal rule requiring some big employers to provide contraceptive coverage in their health insurance plans was a setback for employees, but hopefully not a calamity. The much-anticipated ruling in the Burwell v. Hobby Lobby case limited the mandate, but spelled out a way for the federal government to provide contraceptive coverage for affected employees anyway. Doing so would uphold the law’s overriding goal: ensuring that Americans have equal access to adequate reproductive health care. Still, the ruling holds the potential to create great mischief by keeping alive the flawed legal notion that companies can pick and choose which laws to follow so long as they cite a religious justification.

Hobby Lobby, a retailer owned by a Christian family, objected to paying for contraception coverage, and now it will no longer have to. But the decision provided a roadmap for how the Obama administration can ensure that Hobby Lobby’s employees receive those benefits anyway, with any resulting costs absorbed by either insurance companies or the government. In both the majority opinion authored by Samuel Alito and a concurring opinion by Anthony Kennedy, who provided the decisive vote in the 5-4 opinion, the justices noted that the government already has a framework in place to provide contraceptive coverage to the employees of religious nonprofits. Indeed, it was the very existence of that mechanism that seemed to convince Kennedy that the government had a less-restrictive tool available to accomplish its goal of increasing contraceptive coverage than forcing Hobby Lobby to pay for it.


And the majority decision brimmed with caveats. The opinion doesn’t apply to big publicly traded businesses. And while Hobby Lobby argued that the contraception mandate infringed on its First Amendment rights, the justices didn’t embrace that argument and sided with the company for a different reason. Indeed, the court mostly ignored the constitutional issues, instead basing its ruling on a 1993 law, the Religious Freedom and Restoration Act, which requires the government to prove that laws burden religious believers as little as possible.

That interpretation of the 1993 law was too broad, and as the dissent by Justice Ruth Bader Ginsburg pointed out, seemed to go well beyond the intent of Congress by extending religious-freedom protections to a commercial business. And the ruling didn’t explicitly reject Hobby Lobby’s First Amendment claim, either, which means the disturbing trend of seeking a license to discriminate in the Constitution’s free speech protections is likely to continue. In some states, for instance, opponents of homosexuality have tried to argue that Christian caterers or florists shouldn’t be subject to discrimination laws if they don’t accept gay customers. Sooner or later, the court must reinforce that a business owner’s religious beliefs don’t create a legal reason to violate a worker or customer’s rights.


In political terms, basing the decision on the 1993 law turns the tables on Democrats who are condemning Monday’s decision. The 1993 law was passed by a Democratic Congress and signed by President Bill Clinton, who said at the time that it would make the government present “a very high level of proof before it interferes with someone’s free exercise of religion.” That was the test the justices found the contraception-mandate rule failed in the Hobby Lobby case. The ruling was a reminder that laws can have unintended consequences. But it was also a signal that the justices don’t necessarily believe Hobby Lobby’s newfound protections are enshrined in the Constitution. Congress can change the law to eliminate Hobby Lobby’s new exemption from the health care mandate — and it should.