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Women to have the contraception for free, Hobby Lobby doesn’t have to pay for it

Douglas Laycock is the Robert E. Scott Distinguished Professor of Law, and Professor of Religious Studies at the University of Virginia

The Opinion of the Supreme Court in the decision known as the Hobby Lobby case is lengthy -- 49 pages, not including Justice Ginsberg's 35-page Dissent -- and it is replete with clarifying statements about aspects of the issues involved that the Court did not consider; and there seems to be a great deal of misinformation about what issues the Court actually did consider, not to mention what the effects are likely to be of the outcome in the ruling.

In a July 1 article appearing in the Washington Examiner, that featured a telephone broadcast, Professor Douglas Laycock seemed to characterize the coverage of the opinion in the 'Hobby Lobby' case as having generally missed the point:

"You’ll never learn this from the partisan rhetoric on both sides, but the court found a win-win solution. Both sides were protected. Women will get the contraception for free, and Hobby Lobby doesn’t have to pay for it. That’s the most important thing in this decision and you've got to read down into the 15th paragraph in most stories to find it, if you find it at all. I think the losers are embellishing the most, but the court didn’t say that employers have this right if the consequence is that employees have to do without the benefit. That’s a much harder question. They didn’t decide that yesterday.

This should not have been 5-4. Once they figured out the employees didn’t have to do without contraception it should have been an easy case; but I think both sides are dug into ideological commitments and sometimes they can overcome that; but very often they can't and they claim to have done all this independent analysis and it just turns out the law agrees with them I don't think there are going to be many of these religious claims by corporations. It has almost never happened before. Not may business corporations are run on religious commitments so it's not surprising that we never saw a case like this before this year. I don't think there are going to be many more."

This is essentially a fiscal debate that involves both First Amendment protections and the protections of the Religious Freedom Restoration Act of 1993 and the mandated provisions of the Patient Protection and Affordable Care Act of 2010. The Hobby Lobby Stores, Inc, et al.-- operating as a closely-held corporation -- strongly objected to their being required to sponsor and pay for the medical benefit of an abortive agent for the purposes of executing an act to which they have profound opposition based upon their longtime held and longtime practiced religious beliefs proscribing the taking of a human life except in very narrow circumstances, (such as a 'just war,' or in self-defense, or unless the life of the mother were in jeopardy).

The 'win/win' resolution would ultimately dictate that the Department of Health and Human Services absorb the relatively low cost of the abortive agent as well as other contraceptives available as a medical benefit under the ACA. There was no judgement at all relating to whether the religious beliefs were reasonable, as noted in the Opinion of the Court in Burwell v. Hobby Lobby Stores, Inc. beginning on page 36:

" ... This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another. ..."

In the 5-4 decision of the case, the Court ruled that the plaintiffs challenge to the contraceptive coverage requirement succeeded on the merits. The Dissenting Opinion was written by Justice Ginsberg, with Justice Kagan, Justice Sotomayor and Justice Breyer joining.

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