I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

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Hobby Lobby and Religious Freedom Restoration Acts (including the one in Mississippi)

I have read most of Justice Ginsburg’s dissent in the Hobby Lobby case and some of the majority opinion, and the upshot seem to be this:  When Congress passed the Religious Freedom Restoration Act, it made clear its intent to overturn a couple of United States Supreme Court cases.  But, Justice Ginsburg argues, what the majority is doing here goes far beyond restoration and creates a right that will allow someone like Hobby Lobby to use assertions of religious freedom even when it violates rights of third parties who do not share those beliefs.

While this point seems obvious on a moments reflection, it bears repeating:  What the Court holds is that women who wish to have contraceptives can be denied that right because the owners of the business were they work don’t want them to have it.    The majority suggests the possibility that the government can pay for the contraceptives although refuses to opine whether that’s even legal under the act.   I’m sure if the Obama administration does this by regulation it will add to the screaming emanating from the House of Representatives about his lawlessness.

It is obvious that these notions are going to be argued in cases under the state act.

I may try to write more later, although this is another busy week.  I’d like to see comments.

79 comments to Hobby Lobby and Religious Freedom Restoration Acts (including the one in Mississippi)

  • You religion is the same as you penis. It is something you can be proud of, but don’t shake it in my face.

    seen on Facebook

  • EAB,

    Hormonal treatment for endometriosis is not birth control. My understanding is that the Catholic church has no problem with hormonal treatment for endometriosis. Just don’t shift gears. Don’t say, oh, a very few women have endometriosis, therefore all women must have an absolute right to free birth control. It’s completely different issue. For males there is a drug that shrinks the prostate that also promotes hair growth. One can argue that there is a medical right to the drug if one has an enlarged prostate, but one really doesn’t have the right to demand that one’s employer pay for the drug for the purposes of growing hair; same drug, different uses.

    And Pike, let me make it clear that I think male store clerks at Hobby Lobby who want their company to be forced to buy them free condoms are also low-down and sorry. They cost fifty cents at any truck stop in America; man up!

  • EAB

    Hormonal treatment for endometriosis is EXACTLY the same medication as birth control and therefore is treated in exactly the same way under the law. IUDs like Mirena are specifically named in both lawsuits as objectionable and there is not a single word in the Hobby Lobby opinion exempting them when used for medical purposes.

    Since hormonal contraception and IUDs have contraceptive effects as well as medical effects (and depending on your personal opinion, anti-implantative effects), yes, a number of Catholics do indeed find it problematic — see the fine folks at American Life League. While that is not official Church doctrine, Burwell v Hobby Lobby contains no requirement that the sincerely-held belief conform to any particular church teachings, Catholic or otherwise.

    Many Catholics and non-Catholics likewise oppose the use of birth control pills because they believe that they too can potentially prevent implantation and therefore are abortifacients. That would be equally true whether the pills were taken with medical or contraceptive intent — same drugs, same effects. It is absolutely possible that a given employer might legitimately object to providing any coverage for BCP.

    If your employer is willing to assert that he has a serious moral opposition to contraceptives, he doesn’t (and shouldn’t) have to prove that the religious exception is religious enough to qualify. Nor does he have to prove that the belief is scientifically or medically justified.

    Seriously, at this point I’m finding it a little difficult to believe you’ve actually read Alito’s opinion. You’re arguing the law and/or the medicine as you’d personally prefer to see it than what Alito actually laid down today. The relationship between the two seems to be rather strained.

  • EAB

    As for it being a “very few” women affected by this, I’ll just note that 10% of women suffer from endometriosis and a further 10% of women have PCOS. That’s not even including other conditions like menorrhagia or amenorrhea, which are likewise quite common — menorrhagia is estimated at 30% of all women, though there’s significant overlap with endo and PCOS.

    In my world, 20% or more of the entire reproductive-age female population does not constitute a “very few”. Please, please get your facts straight about the basic biology and medicine involved here.

  • Jesse, I wish I shared your confidence in the Dems’ controlling the White House & Senate after 2016. These next 3 appointments cd seal the Court’s balance for the rest of my life. We can’t afford more Shelby County & Hobby Lobby decisions for 30 years.

  • NMC

    Not sure how Jesse is counting: Stephen Breyer is 74, Anthony Kennedy and Antonin Scalia are 76 and Ruth Bader Ginsburg is 79. If the presidency goes badly, this could get way worse.

  • I agree with Anderson and NMC for once. Everyone thought Ginsburg was going to retire to give Obama another appointment, but she said she wasn’t going anywhere. However, her health isn’t all that good, and I doubt she can hold out for seven more years if the GOP takes the White House in 2016.

  • a friend of the law

    My opinion may be in the minority here, but I think the Hobby Lobby decision was a great one for the protection of religious freedom and liberty. Some can get lost in the weeds trying to sort out the opinion, but overall the direction of the Court on this issue is a good one.

    From a factual standpoint, I think it is relevant to point out that Hobby Lobby’s subject health plan DOES PAY for most forms of contraception, just not the few ones that their religious beliefs deem to constitute a type of abortion —- preventing pregnancy after fertilization of the egg has occurred. Eg. ” morning after pill”. I have seen many media reports hyperventilating against Hobby Lobby and their failure to provide necessary health care, including contraception, for women. These reporters are either ignorant of the facts, or being deliberately deceptive. Neither is flattering.

    The potential distinction between closely held corporations and public corporations on this issue is relevant only in the determination of whether the religious beliefs to be protected are genuine. Because a corporation’s owners are the shareholders, it would seem to be very difficult to make such a case for a public corporation. By contrast, a private, closely held corporation could more easily demonstrate a strongly held, singular religious belief. Eg. my small, incorporated law practice.

    The underlying fundamental problem is the linkage of medical cost insurance to employers, made even worse by the ACA’s employer mandate. There should be no mandated medical cost insurance of any kind by the government . All medical insurance policies should be individual, portable, and subject to state law ( no more ERISA ), with the free market, not the government, deciding what types of medical insurance policies can be offered. In conjunction with this, implementation of medical savings accounts ( similar to cafeteria plans, but no “use it or use it” , with unused funds carrying over and staying in the account) could provide a great mechanism for employers to provide such benefits to an employee (eg helping to fund that account), while the account belongs to the individual who could pay for the premiums for his/her own selected medical insurance out of the account funds. While such a system has many other benefits, such would eliminate the need for an opinion such as Hobby Lobby in order to protect the religious beliefs of employers. Employers would have no input into the medical insurance plan selected and purchased by the employee.

    Being forced by the federal government to pay for medical insurance for employees that provided coverage for abortion type contraception, against their religious beliefs, was the premise that brought about the litigation. The system that I outlined above would take this unconstitutional premise out of the medical care equation.

  • EAB

    “I think it is relevant to point out that Hobby Lobby’s subject health plan DOES PAY for most forms of contraception”

    It absolutely doesn’t matter what Hobby Lobby’s particular insurance does or does not pay for. The very first line of Alito’s ruling is “HELD: The HHS regulations imposing the contraceptive mandate violate the RFRA”. It’s the entire mandate, not “the inclusion of Plan B in the HHS mandate”. The subsequent language of the decision makes it crystal clear that it includes all 20 FDA-approved contraceptive methods which a company might object to on any religious grounds, not just Plan B and IUDs. To do otherwise would be to privilege the specific content of Hobby Lobby’s religious beliefs about personhood over other religious beliefs about contraception, which is clearly unacceptable.

    Hobby Lobby might CHOOSE to keep providing other forms of oral contraception, but they’re by no means REQUIRED to. Other companies won’t and aren’t.

  • a friend of the law

    EAB, you are exactly right in your analysis of the opinion. However, the practical application of the law is always important, which brings us to actual facts. The attacks upon Hobby Lobby ( the business) are not fact based. Plus, I don’t foresee a large movement of companies seeking to preclude medical insurance coverage of all contraceptives for its employees on religious grounds. Now, whether medical coverage insurance plans should even cover the costs of contraceptives is an entirely different issue — the ” pill” can be obtained at the pharmacies of your local Wal-Mart, Kroger, etc for approx $9 per month — condoms can be easily obtained for less than $1 each. IMO, medical insurance should be used to cover the big ticket items only — hospital stays, surgeries, etc., not colds, sniffles , condoms, etc.

    Less federal government regulation of our personal lives will produce less of a need for Hobby Lobby type opinions to protect our liberty from government. I personally don’t need or want the government involved in my health care decisions and relationships with my doctors. I think most folks feel the same way. That is why the ACA is so unpopular.

  • Scott

    “with the free market, not the government, deciding what types of medical insurance policies can be offered.” – this would result in a lot of health insurance plans for healthy people, and none for sick people. get real. insurance companies make profits by not having to pay benefits. the free market incentive is 100% backwards in the health insurance industry.

    “implementation of medical savings accounts ” – and of course, healthy people would never use the money they saved up in the savings accounts? and . . . since no one in their 20s or 30s ever thinks they’ll get sick, by the time they’re finally needed what’s in the accounts will be insufficient. maybe it *should* be different, but that’s they way it *would* be.

    both of those are ideas that might sound good in theory (depending on your political point of view) but have no relationship to the real world.

  • EAB

    “medical insurance should be used to cover the big ticket items”

    As I noted several thousand words of outrage ago, IUDs and tubal ligations (which are laparoscopic surgeries) definitely fall in the big-ticket-item category. An IUD costs approximately 138 hours of a Hobby Lobby cashier’s minimum-wage labor. Plan B is $50/pack for the generic, which is not peanuts. Companies are also free not to cover the several-hundred-dollar doctor visit with pelvic exam and pap smear (and often ultrasound) you need to get the $9/month prescription.

    I’m personally not mad at Hobby Lobby per se, because I don’t work there. I care more about what Alito said my husband’s employer can do to MY coverage. And there are a lot of Catholic-owned companies out there who do indeed have issues with all birth control — several of the other lawsuits in the lower courts are broader.

    I get that you’re trying to make a broader point about the libertarian paradise of free-market non-employer-based catastrophic-only healthcare, but we don’t actually live in that world right now. Given that, I still fail to see why the uterus parts of my health care ought to be treated differently from the ankle parts.

  • Jesse

    “Jesse, I wish I shared your confidence in the Dems’ controlling the White House & Senate after 2016.”

    The Senate is certainly an open question, based on our constitutional structure (i.e. Wyoming and California each get two Senators). But from here on out, with our national demographics, for the Democrats to lose the presidency, they will need to nominate a bad candidate and the Republicans a good one. Looking at the 2016 possibilities, the Dems have what appear to be 2 good candidates in Clinton and O’Malley. I don’t see the Republicans having a single good candidate. So I’d put huge money on a Dem president in 2017.

    If it’s a Democratic president and a Republican Senate, the Senate will still let the Dem president replace a liberal justice with another liberal. They will insist on a more moderate replacement for any of the conservatives, but that will still be a big step forward.

  • a friend of the law

    EAB, I fail to see why I must pay premiums for a policy to cover ” uterus parts ” when I have no such parts. The one size fits none approach is where the ACA has us headed.

    Scott, cafeteria plans have already been successfully implemented and used for years. The medical savings accounts approach is simply an improved expansion. No more ” use it or lose it”, with ability to pay medical insurance premiums out of the funds.

    The government’s role in health care would be to assist the elderly ( Medicare), poor ( Medicaid), veterans ( VA) and uninsurable ( subsidized high risk pool).

    I am the “real world”. I live in it and work in it every day.

  • AFOTL doesn’t have cancer and thus shouldn’t have to pay for cancer coverage.

  • Someone early on in this thread said the government ought to provide Medicare for all. I disagree. The government ought to provide a voucher that can be used for bare-bones MedicAID for all. Everyone should get the voucher, regardless of income.

    Those who want the Medicaid insurance could get it for free. And it shouldn’t be financed with a tax on medical care, either. Tax gasoline, or wealth, or tattoos, or what-have-you. We don’t finance food stamps with a tax on food and we shouldn’t finance health care with a tax on medical treatment.

    Those who don’t want the Medicaid insurance should be allowed to use their voucher in the free market, with traditional employer insurance or whatever, pretty much as it used to be, without young people being required to pay double and men and senior citizens being required to buy pregnancy insurance. And employers should be allowed to offer whatever insurance they want, whether they choose to exclude morning after pills, contraceptive pills, or blood transfusions. Christian Scientist employers could offer accident-only insurance. People who didn’t like it could go out and get riders or else buy their own or else just get the free Medicaid insurance.

    The real problem is that Obamacare is a terrible system, immorally financed, and unsustainable. It can’t last in its current form.

  • Scott

    AFOTL, cafeteria plans have nothing to do with what you were talking about. And a “free market” approach to health insurance isn’t realistic, when the profit motive in that industry rewards *not* providing the service that’s sold.

    A free market is based on the idea that “given perfect information, rational people will make rational decisions to benefit themselves.” If anyone had perfect information, and if human beings were rational, the free market would be the magic fairyland you think it is. But people do not have perfect information, most human beings do not make rational decisions even when they do have perfect information, and the ultimate maximal free market approach is a not a magic fairyland.

  • P.B. Pike

    So, other than Justice Alito’s meaningless limitation of the holding to Hobby Lobby’s fabricated religious objections in the case, which part of his opinion prevents a Catholic employer from refusing to compensate his employees with a plan that covers pregnancies conceived out of wedlock? If nothing prevents that position, why is it irrelevant that huge Catholic institutions owned and operated by the Catholic Church, like DePaul University, have historically provided plans that cover such pregnancies, without apparent reservation? Would that history matter in court if DePaul decided, in light of yesterday’s decision, to stop “paying for” out-of-wedlock pregnancies on religious grounds? Do the contributors here who are so rapt in the rightness of this sham of religious freedom support a public policy in which a hyper-religious employer could ask an employee about the intimate circumstances of her insemination — i.e., who’s the daddy? In fact, why should a Catholic employer provide a plan that covers *any* OB-GYN costs for single women who require treatment as a result of pre-marital sex? Would it be o.k. to require unmarried job applicants to sign as a pre-condition of employment some kind of acknowledgement that a medical condition that results from sex out of wedlock will not be covered in their compensation? Is a single man who fails to use a 50-cent condom and then expects his new case of herpes to be covered “sorry and low-down,” in CRS’ extremely un-Christian formulation?

    Or do you just not give a shit about any of that because the ACA has Barack Obama’s signature at the bottom, and that is all that matters?

  • EAB

    “when I have no such parts”

    I don’t have a prostate either, yet I pay to receive insurance coverage for cancer treatment of same, and for a bunch of other diseases which are much less likely to apply to my gender. Strangely, I don’t mind, given that I share an insurance policy with someone who does have a prostate.

    Nor do I have Alzheimer’s, osteoarthritis, or other diseases of aging, yet I must pay for others in my policy group to access those benefits. If you want to get outraged at cost-sharing, geriatric medicine is a MUCH bigger target than pregnancy and contraception. Retirees are borne by Medicare, but older workers are responsible for a good chunk of company policies’ expenditures. A month of statins costs a heck of a lot more than my birth control, and a hip replacement is much more expensive than my tubal ligation.

    Oddly enough, though, I don’t really see anyone complaining about how health care policies ought to be able to remove such coverage from younger workers and slam the older ones with 10x the premium cost.

  • P.B. Pike

    “Oddly enough, though, I don’t really see anyone complaining about how health care policies ought to be able to remove such coverage from younger workers and slam the older ones with 10x the premium cost.”

    The average age of Bill O’Reilly’s viewers is 71.

  • EAB

    CRS, you have just accurately described the much-reviled public option that was originally intended to be part of Obamacare. It was removed when it became clear that GOP opposition to this provision made it politically impossible.

    That’s also a reasonable approximation of the way that most so-called single payer countries, including Canada, UK, France, and Switzerland, actually handle medical coverage. The government provides everyone with access to a basic policy, and wealthier citizens can purchase supplemental private insurance if they want. For that matter, it is also an accurate description of MediCARE, since older adults often purchase supplemental coverage for procedures and medications that Medicare doesn’t include or cover 100%.

    So, I’m not really seeing the actual policy distinction you’re trying to draw here between that, Medicare-for-all, and single-payer. I think you’d be hard-pressed to find a Democrat, including this one, who wouldn’t be in favor of such a system.

    Oh, and just to finally settle the argument about whether yesterday’s ruling applies to all forms of contraception, Alito and co did a mic-drop this morning: http://talkingpointsmemo.com/news/scotus-says-hobby-lobby-ruling-applies-broadly

  • EAB,

    What I have described is only in part the public option. I advocate a very limited “free” care service. You get what’s assigned, generic drugs, and so forth. One of the reasons that conservatives opposed this is that they were afraid that liberals would try to offer ultra-lavish benefits, such as completely free birth control, completely free iud’s, and so forth, which is ridiculous.

    Of course, as it ended up Obamacare ended up mandating these things under the theory that there was some type of magic wand out there that would just make these benefits jump out of nowhere. So a worker making $800 per month could just get an $800 IUD and it would just get paid for magically in Harry Potter fashion, without regard to how much she was actually producing in profits for her employer.

    You mention Canada and the UK among others. I don’t know the law in all of these countries, but in Canada, it is against the law to see anyone but a government doctor. In the UK, you must pay for the NHS, and if you don’t use it you are not given a voucher. You must pay from dollar one for health care in the private sector. I think it was a fear that we would end up with a totalitarian system like this that caused people to be against public option.

  • P.B. Pike

    Yes, we mustn’t model those well-known totalitarian states, Canada and the UK.

  • Doctors in jackboots, crushing our freedom to live without healthcare!

  • P.B. Pike

    Actually, CRS is quite right when he says, “I think it was a fear that we would end up with a totalitarian system like this that caused people to be against [the] public option.” The right-wing’s quivering “fear” of a public option was indeed that baseless and stupid. They are rarely afraid of anything real. They carried the same objection over to oppose Obamacare — once they divested themselves of the responsibility for having conceived it, that is.

  • I think Obamacare is far worse than a single-payer option. It makes insurance mandatory, and penalizes people who want to stay out of the system. It keeps the burden of providing insurance on employers, and increases their costs of doing so. It bolsters the profits of insurance companies. It increases the premiums and deductibles for thousands of Americans who were already covered. It forces people to purchase more coverage than they want or need. And it does nothing to curb the outrageous cost of medical care.

  • Shorter jdogg: free riding is The American Way!

    Yes, insurance is mandatory. Always has been, for non-idiots who could afford it.

  • EAB

    “I advocate a very limited “free” care service. You get what’s assigned, generic drugs, and so forth”

    That’s not how Medicaid actually works either. Medicaid’s mandated to cover all services that Medicare does, plus some extras. You can use any doctor you want provided she’s willing to accept Medicaid reimbursement rates for the procedures they cover, and you pay out of pocket for any procedures they don’t. From the patient perspective, it’s pretty much like having regular health insurance.

    And Medicaid most definitely covers free birth control, including the pricier ones, because of the economics involved. It’s not Harry Potter magic unless you somehow think having babies is free. (Hint: pregnancy and childbirth cost Mississippi’s Medicaid program well north of $250 million a year.)

    A completely uncomplicated vaginal birth costs at least $10K, and it goes up sharply from there with C-sections, preterm births, NICU stays, etc. If you provide a woman with an IUD and thereby protect her with 99.5% certainty from having an accidental pregnancy in the next 10 years, you come out at least $9K ahead. My two pregnancies, both of which were obstetric disasters, cost my insurance company an order of magnitude more than my entire lifetime’s worth of contraception. I promise you, my insurance company DEFINITELY thinks it’s in their financial interest to help me not to have a fourth baby, by whatever means necessary.

    That’s why the insurers are on board with the contraceptive mandate and the religious accommodation. It’s literally putting money in their pockets, because unplanned pregnancies are *just that expensive* for the entire US healthcare system.

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