This column, unlike most, is not a reaction to what Sean Michael Winters has said on the issue. I may comment on his comments later on, but I need nothing to riff off of on this issue.
As most people know, Hobby Lobby et al have won the right not to pay for IUD or Plan B coverage for their employees. I am not sure how they will go about doing this, since these are standard coverage items. Indeed, the Secretary of HHS should not have been a party to the case - the person to be sued should have been their insurer and then the Secretary who mandated the coverage as a ministerial part of enforcing the Affordable Care Act.
The case was not decided correctly (unless you buy the argument that whatever a majority of the Court says is correct and constitutional). For the want of an argument convincing middle voter Justice Anthony Kennedy, Justice Alito got to write the opinion of the Court. Never a good sign.
The Petitioners argued that they had a religious right not to pay for what they believed to be abortion inducing birth control methods. This is sloppy language and it has been since the Catholic Church began opposing the contraception provisions in the Affordable Care Act regulations. As I understand it, the majority shareholders in Hobby Lobby are not Catholic, but are part of a movement in the Evangelical Right to lock arms with the Catholic Church on the issue of birth control - due mostly to their common membership on the National Right to Life Committee and other organizations. Apparently the Pope is only the anti-christ when not talking about abortion or birth control (if you don't get the joke, you know little of American history regarding the Catholic Church - although the reaction against Catholic Central American migrants getting fair treatment on immigration may have you think nothing is changed).
The point is that the owners of Hobby Lobby and Shenedoah are not alone but are part of a larger coalition to force their views on this issue onto as many people as possible (most of whom are women). That is not religious freedom - that is religious power. Freedom involves the ability to not be controlled by others on your personal (not your business) conduct and would even include speaking your mind about what you think others should do. Power is taking away their options to act. This case was not about religious freedom - it was about religious power. Sadly, that case was not made on argument -if it had been Kennedy might have gone the other way.
Indeed, the ability to exercise power should have another restriction - that of reality. In this matter, the contention is that the cited birth control methods cause the death of a child. Setting aside the fact that under Roe v. Wade and Doe v. Bolton, life begins legally at viability (and why this was allowed to happen is a mystery), the embyrologists who write the text books and the Encyclopedia Brittanica articles about Development will tell you that life beings at Gastrulation - and their position is both scientific and common sense. Until St. John Paul II let a cardiologist write his encyclical Evangelicum Vitae, most Catholic ethicists would have agreed that life beings at about a week - essentially gastrulation. Indeed, even if one is Catholic, if one is morally sure that life begins later than conception - but instead at gastrulation, then there is no obligation to preserve it - that is both E.V. and Aristotle.
Of course, if the whole no copayment thing were not part of the ACA, there would be no ethical or legal place to stand. The Petitioners would have no claim that their money was solely responsible for these drugs - and if tax money or outside insurance money paid for these services, they would have no right to sue. As it is, that is the one thing that Justice Alito got right. The question is, will Congress be able to act? (probably not). Will the Administration and the insurance companies be able to devise a solution? Most likely but nothing is for certain.
What is for certain is that this is going to backfire on the Republicans big time. Justice Aliton has thrown the gauntlet back down in the War on Women during an election year. I am quite sure that there is now room to make this an electoral issue and if Republican women get that this is about them (Democratic women don't work in Hobby Lobby) then this could be the biggest gift the Democratic Party has gotten since now Cardinal Dolan testified with four other men on birth control, Limbaugh called Sandra Fluke a slut and Todd Aiken opined about rape victims rejecting embryos naturally.