Opinion and Taking Issue

RUSTHOVEN: Things you don’t know about Hobby Lobby

July 5, 2014

RusthovenFrom reaction on the left to the Supreme Court’s Hobby Lobby decision, you’d think it ruled that corporations have First Amendment “free exercise of religion” rights, allowing them to refuse contraceptive coverage for women employees despite the Affordable Care Act’s statutory command.

You’d be wrong. Literally none of this is true.

For starters, the act does not say employers must provide contraception coverage. It says only that employers must furnish “preventive care and screenings,” leaving federal regulators to decide what that means.

Regulators defined the phrase to include contraception, “as if a pregnancy is a disease to be prevented” (quoting Charles Krauthammer, who is not pro-life). They listed 20 required contraceptives.

Most work by preventing fertilization. But four may stop development of an already fertilized egg. If you believe life begins at conception—as many Americans do—using those four involves taking human life.

Only the four abortifacients were at issue in Hobby Lobby. The decision did not affect regulatory commands that employers (including corporations) provide no-cost coverage for all the other contraceptives.

Nor did the court hold corporations have constitutional religious freedom rights. It was applying a statute (the 1993 Religious Freedom Restoration Act., or RFRA) that forbids substantially burdening “a person’s exercise of religion” unless the government shows it chose “the least restrictive way” to further a compelling interest.

Think a corporation isn’t a “person”? Congress disagrees. Under the aptly named Dictionary Act, the word “person” includes corporations unless a statute clearly indicates otherwise. RFRA does not so indicate. Only two Hobby Lobby dissenters thought it did; the other two carefully skirted that issue.

The decision also doesn’t apply to all corporations. It affects only those that are “closely held” —i.e., owned privately by a few shareholders, often family members. An example is Hobby Lobby, owned by a family whose religious convictions include not opening on Sundays (thereby forgoing millions in profits), and not paying for abortifacients (which they believe take human life).

So, all that the court held was that a family-owned company can’t be forced to pay for four contraceptives the family believes destroy human life. This ruling was based on a statute that forbids burdening anyone’s exercise of religion unless the government shows it chose the “least restrictive way” to serve a compelling interest. Do you think making a company pay for four specific drugs that its owners believe take human life is the “least restrictive way” to further any compelling government interest in free contraception?

But how are Democratic leaders describing the Hobby Lobby decision? Here’s an example. “If the Supreme Court will not protect women’s access to health care, then Democrats will. We will continue to fight to preserve women’s access to contraceptive coverage and keep bosses out of the examination room.”

Here’s another: “In a lot of societies that are very unstable, anti-democratic, and frankly prone to extremism … women and women’s bodies are used as a defining and unifying issue to bring together people, men, to get them to, you know, behave in ways that are disadvantageous to women but which prop up them because of their religion, their sect, their tribe, whatever. So to introduce this element into our society … it is very troubling.”

The first speaker is Harry Reid. The second is Hillary Clinton. Their comments, particularly hers, are inaccurate and inflammatory. Both should be ashamed.•

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Rusthoven, an Indianapolis attorney and graduate of Harvard College and Harvard Law School, was associate counsel to President Reagan. Send comments on this column to ibjedit@ibj.com.

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