Richard E. Holicker: Ruling opens a can of worms

Ruling opens a can of worms

By Richard E. Holicker

In holding that Hobby Lobby doesn’t have to follow the law, the U.S. Supreme Court ruled that because owners of the Hobby Lobby corporation “have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients,” they believe that complying with the law “will be facilitating abortions.” The high court further ruled that the law’s prescribed penalties for not complying “amount to a substantial burden” and found that the Hobby Lobby corporation — bestowed with personhood by the court — should not be so burdened.

The majority’s ruling seems to hinge on whether the law’s requirements with regard to providing insurance that covers certain forms of birth control are the “least restrictive alternative” for accomplishing its goal, and whether the court’s ruling would require “the general public [to] pick up the tab.” The majority says no to both questions. The ruling declared:

“There are other ways in which Congress or HHS [the Federal Department of Health and Human Services] could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives. In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.”

The majority is being intellectually dishonest, as the “system” referred to is one in which the government does, indeed, “pick up the tab.” (See Justice Ginsburg’s well-reasoned dissent for elaboration.)

One may be reasonably certain that if the religious beliefs of the court’s majority didn’t jibe with those of Hobby Lobby’s owners, the ruling would have been different (just as one may be reasonably certain that if the religious rites the court’s majority comported with those of the Native Americans who litigated an earlier case, Employment Division v Smith, 494 U.S. 872 (1990), the court would not have ruled, in an opinion notably authored by Justice Scalia, that Native Americans who exercise their sincerely-held religious beliefs by ingesting peyote may nevertheless be fired from their jobs and denied government unemployment benefits for doing so.)

I eagerly await the case in which a corporation owned by Jehovah’s Witnesses brings suit to evade providing insurance benefits that cover blood transfusions, or in which a company owned by Scientologists brings suit to evade providing insurance benefits for psychiatric treatment, or even in which a corporation owned by Christian Scientists brings suit to evade providing insurance benefits that cover any medical treatment at all.

Holicker is a Charleston lawyer.

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