Hamilton Legal Contraceptives and the RFRA

Sara Sirota

If you have been keeping up with the news lately or happen to be in Professor of Political Science Timothy Byrnes’s America as a Democracy class, then you know about the Hobby Lobby case, on which the Supreme Court heard oral arguments on March 25. Hobby Lobby is a privately owned arts and crafts chain that employs about 15,000 individuals at 609 stores across the United States.

Why is Hobby Lobby involved in one of the most controversial Supreme Court cases of the year? Its Southern Baptist owners believe that the 2010 Affordable Care Act regulation that requires them to provide insurance coverage for all FDA-approved contraceptive methods and sterilization procedures violates the 1993 Religious Freedom Restoration Act (RFRA), which provides that the government “shall not substantially burden a person’s exercise of religion.” The owners claim that the provision of the Affordable Care Act does burden their exercise of religion because their “sincere religious beliefs prohibit them from covering four out of twenty FDA-approved contraceptives in their self-funded health plan.” The owners must pay fines for failing to cover these contraceptives.

The question in Sebelius v. Hobby Lobby Stores, Inc. now becomes, should the government exempt Hobby Lobby from certain regulations due to its owners’ religious beliefs? Currently, a Religious Employer Exemption does exist; however, it only applies to non-profit organizations, such as churches and other houses of worship. Hobby Lobby is a for-profit organization, but it is privately owned, which Hobby Lobby supporters claim as one of the reasons for why the corporation should be exempt. A publicly traded corporation would be a different situation, as Chief Justice John Roberts suggested during the proceedings on March 25.

Of course, many people have turned this case into one about birth control and abortion. It is not. It is about whether RFRA protects a corporation and/or its owners from laws that violate their religious practices.

At the end of the day, the Supreme Court must rule against Hobby Lobby. An important distinction here, which the case documents seem to be unclear about, is whether Hobby Lobby owners claim they should not have to follow certain provisions of the Affordable Care Act because RFRA protects their religious freedoms or their corporation’s religious freedoms. At times, the counsel for Hobby Lobby seems to conflate the two.

Although Hobby Lobby is privately owned, the government must be able to distinguish between it and its owners. Otherwise, the law would then perceive Hobby Lobby as a religious institution, which it certainly is not.

The counsel for Hobby Lobby disagrees, claiming, “Corporations frequently engage in religious exercise.” Hobby Lobby undeniably has a Christian affiliation. If you look at its website, it mentions “Honoring the Lord,” “biblical principles,” “Lord’s blessings” and “God’s grace.”

However, religious affiliation does not constitute Hobby Lobby as a religious institution. A religious institution must strictly be a place of worship, in which all members and activities subscribe to a particular religion. Hobby Lobby, which employs non-Christians and buys and sells art products, is not a religious institution. Thus, RFRA does not apply to it, so it must follow the regulations of the Affordable Care Act.

Even if the case looks strictly at the owners, the Affordable Care Act does not “substantially burden” their exercise of religion. Truthfully, the owners could choose not to provide health insurance at all and pay $2,000 per employee, which is less than Hobby Lobby probably pays to provide insurance to its employees, as Justice Elena Kagan argued.

If the Supreme Court finds in Hobby Lobby’s favor, this outcome would be troubling because it would give owners of corporations unreasonable latitude to determine which aspects of laws they want to follow and which they do not want to follow based on their religious beliefs. At what point would it stop? From a practical perspective, the Supreme Court could not possibly hear a case for every single corporation that finds some problem with a law. Thus, the Supreme Court must rule against Hobby Lobby.

By the way, I find it incredibly hypocritical that the Hobby Lobby owners are attempting to avoid the Affordable Care Act for religious reasons, yet they purchase their products from China, which does not exactly observe the Christian values that the owners believe are so fundamentally important. Since they are comfortable buying from China, how problematic could they honestly find those four contraceptives to be? Perhaps the Supreme Court should consider this when reaching their decision.