With this column, we try to take the politics out of the discussion over the Affordable Care Act. Instead, we look at how businesses and employees are affected by the law, its specific regulations—and, in this case, the related court decisions.
Recently, the U.S. Supreme Court allowed Hobby Lobby, because of its owners’ religious beliefs, to be exempted from providing contraceptive coverage to employees through their company’s group health plan.
The conflict arose over what’s commonly known as the “morning-after pill.” Hobby Lobby had provided health insurance that included other contraceptives as a standard part of its prescription drug plan—and was happy to do so again.
The objection came when the Affordable Care Act required Hobby Lobby to offer the morning-after pill, something that was as morally objectionable to the owners as abortion.
The court’s decision led to a huge uproar. Opponents say it’s proof of a “war on women’s rights.” But people who say that are misconstruing the real function of our government’s judicial branch, and the Supreme Court in particular.
The Supreme Court’s job is to evaluate the merits of a case based on the laws that Congress has passed. (Assuming the law has been deemed constitutional.) The court is not supposed to make social policy, as exemplified by the 5-to-4 ruling that upheld the individual mandate portion of the Affordable Care Act.
With that in mind, the Hobby Lobby ruling was based solely on the Religious Freedom Restoration Act that was passed in 1993. This law was in direct response to the 1990 Supreme Court ruling in Oregon v. Smith. In that case, two Native Americans were fired because they used peyote in a religious ceremony and were later denied unemployment compensation by the state.
The Supreme Court at the time ruled in favor of the state, indicating that as long as the law was neutral and did not target a specific religious practice, then official codes of conduct did not violate these individuals’ First Amendment rights.
The RFRA aimed to correct what the Congress saw as a poor ruling by the Court and was passed in 1993 by voice vote in the House and by 97-3 margin in the Senate. The new law said that federal laws could not “substantially burden” religious practice unless there are no “less restrictive means” to achieve the end result.
Based on RFRA, the court ruled that the government had not exhausted or even proposed less restrictive means in the Hobby Lobby case. The majority found that requiring Hobby Lobby to provide the morning-after pill was in fact a “substantial burden” to the company and its owners. This ruling had much less to do with women’s rights and more to do with following a law that was passed 20 years before.
Rick Levy, a constitutional law scholar at the University of Kansas, said the court’s decision in the Hobby Lobby contraception case shows that an unwritten law—the law of unintended consequences—is alive and well.
As always, Congress is welcome to step in and draft legislation that provides free contraception through another method, but forcing employers to do it seems to be off the table for legal reasons, not for punitive ones aimed at women.
