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Abstract

Once known merely as an arts-and-crafts chain, Hobby Lobby now holds a special place in American legal lexicon as the personification of for-profit corporate religious exercise. This is the result of a decision by the United States Supreme Court last term in which the Court held that business practices compelled or limited by the religious beliefs of corporate owners deserve some measure of protection against interference by the federal government. The religious belief at issue in Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) is that life begins at conception; the business practice is group health insurance coverage for corporate employees and their families; the government interference is the Affordable Care Act which mandates that group health plans offer no-cost contraceptive coverage; and the source of protection against that mandate is the Religious Freedom Restoration Act of 1993. The Court’s holding is far-reaching, controversial, and, in the authors’ opinion, wrong.

The ink was barely dry from the publication of the Hobby Lobby decision when the Court, three days later, handed a temporary victory to organizations exempt from the contraception mandate. Pending appellate review of the underlying case, the Court enjoined the federal government from enforcing a regulation requiring such organizations to certify its religious objections to the mandate on a government-issued form and to send a copy of the form to the third-party administrator of its health insurance plan. Wheaton College v. Burwell, 134 S. Ct. 2806 (2014). A second generation of litigation is now winding its way through the courts on whether exempt organizations—claiming religious scruples do not permit the “triggering” of contraceptive access—are required to notify the federal government of the contact information of their insurer or administrator. But how else, if not through federal government facilitation, one may ask, are women to obtain the full contraceptive coverage promised by Congress? This demand for an extension of a religious accommodation by anti-contraceptive believers should be rejected.

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