>In a predictably split opinion in Burwell v. Hobby Lobby, the Supreme Court today limited the reach of the Affordable Care Act’s requirement that employers provide health care coverage that includes contraception. The Court held that closely held corporations (corporations that are not publicly traded but instead have all their shares held by a small number of people, usually family members) have right under the Religious Freedom Restoration Act to refuse to pay for contraception when doing so violates their religious beliefs.
In a passionate dissent joined in parts by Justices Breyer, Sotomayor, and Kagan, Justice Ginsburg decried the majority opinion as “a decision of startling breadth” that could allow corporations to generally refuse to fund any health-care or other mandates that their directors oppose. Although these concerns reflect a common concern among many reproductive-rights defenders, however, the opinion does not actually seem to go as far as Justice Ginsberg fears. By focusing tightly on the closely held Hobby Lobby corporation, the Court appears to have merely said that when corporations are closely held by a small number of shareholders and are not publicly traded, they are similar to partnerships or sole proprietorships, where the analogy between individual rights and corporate rights is strongest.
That means that although the opinion will certainly receive widespread coverage and hyperbolic debate, it really changes very little. Most employers will remain bound by the ACA’s mandates, including its contraception mandate. And those few employees of closely held corporations owned by religious families like Hobby Lobby will not be denied access to contraception, as some have feared, they will only have to pay for it themselves or obtain assistance from various non-profit and government assistance programs. The majority also noted that, if the government believes its interest in making free contraception coverage is so compelling, it always has to option to provide such coverage itself rather than attempting to force employers to do so.
In short, there is much less fire here than you might expect given the massive amount of smoke.
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.