Getting It Right: The Court Lets RFRA Do Its Job

By Brandon Dabling

Those who have read today’s Hobby Lobby decision may find it hard not to be amused by the hysterical reactions it has sparked across the internet and even in the Court’s principal dissent. To be sure, these voices are arguing against something important, but this “something” is not Justice Alito’s majority opinion. Call it a product of blinding polarization, corrupted education or a calculated misrepresentation to fuel the fire of the so-called war on women. Whatever it’s source, it is unhelpful in understanding today’s case. It’s also wrong.

So, let’s be clear at the outset, this decision did absolutely nothing to bar women from receiving birth control or even the abortion-inducing drugs (abortifacients) to which Hobby Lobby’s owners objected. The issue was never on the table. 

This doesn’t mean that critics on the Left are altogether wrong in their fears, namely those that the Religious Freedom Restoration Act (RFRA) and the First Amendment’s Free Exercise Clause might still have some bite. The beauty of today’s opinion is that it is limited in its scope while deliberately leaving open (sometimes even hinting at) several avenues by which similar government overreach could be limited and religious freedom expanded.

The official holding of the Court is that the Health and Human Services agency (NOT the federal government and not Congress) cannot force or coerce the owners of “closely held corporations” to provide abortion-inducing drugs for their employees if doing so violates these owners’ “sincerely held religious beliefs.” What are closely held corporations? The Court doesn’t precisely say, but argues that whatever they are, this label certainly describes a company such as Hobby Lobby that is true to its Christian mission statement and biblically-rooted policies at each of its locations.

There are a few qualifications attached to the holding that seem to have escaped Justice Ginsburg’s dissent and many of those now voicing their displeasure. To be clear, the Court only bars regulationsthat pose a significant burden on religious exercise AND also fail to represent least restrictive means (of religious liberty that is) that the government could have employed to achieve a compelling objective, in this case insurance coverage for abortifacients. 

This is RFRA doing what it was intended to do. The government had several ways to provide women abortifacients that would have also preserved Hobby Lobby’s owners’ religious freedom, including supplying the drugs directly. There should be no surprises here, only dismay and hopefully the bracing reawakening that comes with our now annual reminder that at least  four justices show little pause in mangling the law in the name of advancing the sexual revolution.

The Court does nothing radical here. Rather, it obliges the federal government to treat religious objecting owners of for-profit corporations the same way it treats objectors from non-profit organizations and the millions of non-abortifacient-providing plans that were grandfathered under the bill. Indeed at one point Alito hints that the exemption of such a large segment of the population from the regulation’s demands suggests that even the federal government doesn’t view this coverage as a truly compelling interest. Indeed, Congress and even President Obama did not view the providing these drugs important enough to include in the original bill.

True to form, the Roberts Court uses the smallest gun available that still gets the job done, here striking down the regulation under a federal statute rather than the Constitution’s Religious Free Exercise Clause. This can be frustrating for some conservatives who want to see the home run vindication of religious liberty and the Constitution, but this is responsible jurisprudence.

While the Court today uses a smaller gun, it suggests that it would lend a sympathetic ear to future cases’ arguments that might require the use of the larger one, e.g., in a similar case at the state level. After all, the argument that any level of government has a compelling interest in ensuring that all employers provide their employees abortion-inducing drugs is vulnerable to say the least.