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SCOTUS blog: Post-Hobby Lobby orders lists suggests that employers can object to all forms of birth control

Lyle Denniston at SCOTUS blog reports:

The Supreme Court sent a fairly strong signal on Tuesday that its ruling giving some for-profit businesses a right not to provide birth control services to their female workers goes beyond the specific methods at issue in that decision.  It issued a series of orders on six cases, each of which involved owners who objected to all of the pregnancy-related services mandated under the new federal health care law.

As he notes, in three cases, the Court reversed decisions and remanded for reconsideration in light of the Hobby Lobby decision.  Two Sixth Circuit cases (Autocam Corp and Eden Foods) had rejected employer objections to covering all forms of birth control services (including sterilization) covered by the mandate.  A District of Columbia case had also rejected all forms of birth control services.

In another District of Columbia case, Catholic brothers and their food service companies objected to all forms of birth control.  The brothers won their challenge, the government appeal, and review was denied.  The Court denied review in similar cases the employer had won from the Sixth Circuit (two cases) and the Tenth Circuit where the employer, objecting to all services, also won.

What this suggests is that the majority is perfectly fine with an employer who rejects all form of birth control services.

33 comments to SCOTUS blog: Post-Hobby Lobby orders lists suggests that employers can object to all forms of birth control

  • Of course the five male Catholic justices are perfectly fine with that.

  • EAB

    It doesn’t just “send a signal” that this might be the law. By leaving in place the cases like Korte where the appeals court tossed the entire mandate, it is indisputably the law in the Sixth and Tenth Circuits (and any other circuits on today’s list of orders).

    That’s not binding on us here in the Fifth, but given these orders and yesterday’s decision, it’s incredibly hard to imagine that a) a district judge would deny an all-methods challenge that came before them; b) at least one circuit court would do likewise; c) the Court would grant review; and d) the Court would narrow the ruling and privilege religious beliefs about the sin of abortifacients over religious beliefs about the sin of contraception.

    If they don’t want to review these all-methods cases where the employer won and the government appealed, I just can’t see what would possibly convince them to take one up and actually narrow the ruling. (Unless the composition of the Court changes, and even then, stare decisis probably carries the day.)

  • P.B. Pike

    In light of this list of orders, I think the debate with respect to contraception/abortifacients in this context is over. What remains is the extent to which other religious objections against certain medical treatments trump public health after this decision. And frankly I don’t expect to hear about all that many more employer’s religious objections that build on Hobby Lobby’s victory. The more I read about the oral argument in this case and the comments of activists who are elated with the outcome, the clearer it is to me that this wasn’t really a religious freedom case: it was an anti-Obamacare, anti-abortion case.

  • Ben

    The Right is bringing up its legal infantry and artillery for an upcoming blitzkrieg on Griswold and Roe. The “narrow” opinion of today will become a cudgel in the future. Nearly a century of social progress hangs in the balance. I don’t like what I see in this crystal ball.

  • If the government wants every citizen to have free birth control, why can’t the government just levy taxes and pay for it? I just think it’s weird that someone comes up with the idea to provide free birth control for all and then decides the best way to deliver it is to force Catholic priests, etc., to distribute it.

  • EAB

    Yes, that’s exactly what the government is doing here — rounding up all the priests and ordering them to stand on street corners with handfuls of Nuva Rings.

    More seriously, the government does it for exactly the same reason that it uses the mechanism of insurance coverage to provide children with zero-copay vaccinations: because setting up a separate Department of Birth Control is complicated, expensive, and massively inconvenient for people to use. Adding it to existing insurance coverage and allowing people to access it via their personal physicians and preferred pharmacies is vastly easier and cheaper.

  • Scott

    Colonel, you’re missing the point. For most conservatives (and from your statement, maybe you) this is all about sex. EAB’s been talking for two days now how it’s *not* about sex, “birth control” is a medicine. I think in one of her posts, she was talking about for 20% of women it’s a medical issue, not a pregnancy-avoidance issue.

    If you get your brain around that, then you get to “what’s the difference between ‘birth control’ and blood pressure meds?”

    (and we’re not going to get into whether these plans cover Viagra – which *is* about sex, but about which conservatives seemingly have no issue.)

    i could also make an argument that socially, it’s better to have poor, teenage girls get free birth control than it is for them to get pregnant and be single teenage mothers. Again, birth control has very nothing to do with endless orgies, which a lot of conservatives seem fixated on.

  • Scott, my point is that the government ought not be in the business of telling people what type of insurance they ought to offer, whether it’s birth control, blood transfusions, Viagra, or what have you. Religion ought not matter. I’m glad we got a partial win, but atheists ought not have to offer birth control, either. Again, if it is so important, the government should levy a tax and provide it, not force innocent people to provide it against their will.

  • EAB

    I assume you also support levying a similar tax for childhood vaccinations and well-child checks, and requiring all parents to cart their kids down to the local Department of Vaccines office every time they need a well-child visit or are due for shots. After all, if it’s so important, why should the government force all those innocent anti-vaxers to provide it against their will?

    Not to mention that your proposed solution would still have the government forcing all those people to pay the birth control tax against their will, since it’s well-established that moral opposition doesn’t get you out of paying taxes. That’s a heck of a lot more direct than paying an employer contribution of a health insurance premium which some people may potentially use to access a negotiated discount on contraceptives. If the latter’s an unacceptable infringement on religious beliefs, surely payment of a direct tax is even more so.

  • Waymon Vest

    Cant the far left loons be honest about anything? Hobby Lobby is O.K. with 16 of 20 mandated form of birth control. (and furnish them to their employees) They only objected to the morning after type pills.
    Scotus stated that the majority was perfectly fine with an employer rejecting ALL forms of birth control. That is not true BUT i never expect the truth from these kind of people anyway!!

  • “Hobby Lobby is O.K. with 16 of 20 mandated form of birth control.”

    List, please.

  • NMC

    Do you know what an order list from the Supreme Court is, Waymon? The point of the post is that a majority of Supreme Court justices reversed or affirmed cases in a way that can only be read to suggest that it was approving complete bans on birth control by the employers in those cases.

    Who do you mean by SCOTUS? The Supreme Court or the writer Denniston at the SCOTUS blog?

  • P.B. Pike

    If the honesty of people complaining from one side or another is your concern, I direct you to EAB’s comment at TBA’s blog, regarding one CEO challenger’s express indifference to what his female employees do in their reproductive choices:


    The gist is that his company sued the feds just like Hobby Lobby did, stating the corporate owners’ religious objections as the basis of a complaint submitted in federal court, when in fact the founder and CEO — that is, the plaintiff — has made it clear, on the record, that he doesn’t care if his employees use birth control or not. In other words, his supposed religious objections are a ruse.

  • EAB

    Waymon, Hobby Lobby the company currently chooses to provide their employees with coverage for 16 of 20 (they only object to EC and IUDs). However, the actual SCOTUS decision says they don’t have to do that if they don’t want to. They upheld other decisions yesterday such as Korte where the lower court ruled that ANY contraceptive violated the company’s RFRA rights.

    Here’s the first line of Alito’s ruling: “The HHS regulations imposing the contraceptive mandate violate RFRA.” Not “the Plan B part of the mandate”, the whole damn thing. Alito subsequently refers several more times to all 20 FDA contraceptives. If you’ve actually read the decision — I have, several times over — it is pretty clear that any religious objection to any part of the mandate is protected under RFRA.

    (I seriously do not get why people, including media people who should know better, are having so much trouble understanding this…)

  • I wonder did Conestoga Wood object to all contraceptives? It is a bit odd for the Court to reach out & strike contraceptives not even at issue. Or it would be, if this weren’t an obvious travesty by judges putting the Vatican above their oaths of office.

  • EAB

    Conestoga is just the same 4, but several of the other pending cases like Korte involved all 20 methods.

    There are a lot of people who sincerely believe that regular hormonal contraception has the same “abortifacient” effect as emergency contraception — understandable, since EC is the exact equivalent of taking 8 regular birth control pills. The medical evidence to support that belief is just as legitimate as the medical evidence to support the opposition to Plan B. (Which is to say, not very, but it’s the religious belief at issue, mot the medicine.)

    Given that, they really cannot say that opposition to one packaging of a drug is religiously protected, but a different packaging of the same drug with the same effects can be required by law.

  • Their beliefs are magical not scientific, so it’s not like there’s going to be a scientific basis for their objections. I suppose condoms cause abortions too. Why not?

  • EAB

    More to the point, why should the belief that some contraceptives are sinful (because personhood) be privileged over the belief that all contraceptives are sinful (because Catholicism)? Having the Court pick and choose which belief is or isn’t religious enough is all kinds of wrong.

    I dislike the ruling on policy grounds, but at least it’s content-neutral. I would have a really big problem, though, if it singled out Hobby Lobby’s brand of evangelical Christianity as more worthy of protection than Korte’s brand of Catholicism. That’s where we really get into First Amendment Not Okay.

  • But is it really content-neutral, EAB? As Tom points out, the beliefs of Catholics and Evangelicals appear to merit more respect than those of Jehovah’s Witnesses and Christian Scientists.

  • Steve Coll at the New Yorker:

    “If the Pakistani Taliban, aided by clever lawyers, organized a closely held American corporation, and professed to run it on religious principles, might its employees be deprived of insurance coverage to inoculate their children against polio? And would the Supreme Court, by the five-to-four decision issued on Monday in Burwell v. Hobby Lobby Stores and in Conestoga Wood Specialties v. Burwell, endorse such a move? * * *

    “Justice Samuel Alito, writing for the Court’s conservative majority, sought to evade such thought exercises by predicting, without evidence, that there will not be ‘a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions.’

    “Why not? Is it because the justices do not intend to extend their reasoning to companies that hold religious views less proximate to their own Christian beliefs? Or because the judges believe that they can enforce what they imagine to be a rational or permissible resistance to reproductive rights for women, while blocking what they might see as irrational resistance to transfusions and vaccines? As it happens, it is not just the Taliban who are paranoid about vaccines; many American groups, secular and religious, evince such skepticism. Some groups believe, for example, that certain childhood vaccines may cause autism, even though there is no scientific basis for such beliefs.”

  • EAB

    Content-neutral with respect to the contraceptive mandate, I mean. I agree that it’s very quickly going to be slippery-sloped to cover other types of care, but Alito did temporarily limit the current scope to cover contraception only.

    I expect that the first lawsuits for other types of care have already been filed, though I haven’t yet heard anything specific. A number of states mandate insurance coverage of infertility treatment/IVF, which Catholics and a number of evangelicals oppose on religious grounds. I would be shocked if businesses in those states do not very quickly file lawsuits to overturn the infertility mandate, and I cannot imagine that the courts would not apply Hobby Lobby there as well.

  • “Providing health benefits to my employee’s gay spouse violates my religious beliefs because it requires me to endorse their marital status.” Makes about as much sense as the Court did.

  • Waymon Vest

    BOY, Did i start a firestorm, I can see that few if any of the people that left the above comments ever watch Fox News. I will tell a little story. I moved to Alaska in 1969 and lived there until 20004. For the first several years i had no choice except the three network news to watch. Sometime in the late 1990′s i got a chance to see Fox News. I haven’t watched Network news except for local news since. Network and most cable news ALWAYS slant the news, and lots of outright lies.
    I am a Christian, but don’t claim to be saved because i don’t think i live a good enough life, I do believe Abortion is murder though.

  • Waymon Vest

    Forgot to mention. In my first comment i meant Denniston not SCOTUS

  • Waymon: and you really think Fox DOESN’T slant the news?

    Everybody’s got an angle.

  • Waymon Vest

    On 7-2-14 when i said that i only watch fox news wasn’t exactly true. When something like the Lobby Hobby case happens i will tune in to MSNBC and other far left news outlets just to watch them cry, rant, and rave. I sure get a kick out of watching them!!

  • Waymon Vest

    THUSBLOGGEDANDERSON: You saying that everyone has an angle reminds me of an old saying. You should not judge everyone else by your own actions. I am sure that some of Fox News gets slanted. They do have some far left commentators (FAIR AND BALANCE) You will get far more honest reporting on Fox than any other news outlet!!
    Also, i have my own opinion of someone that thinks Condoms cause Abortions. 7-2-14–4:40 p.m.

  • I didn’t read the briefs in HL, but I think it’s mis-framing the issue (which I have done too) to say it’s about women’s right to healthcare. Is this not more an equal-protection issue? HL professes a religious belief that, JUST SO HAPPENS, disparately impacts women. Does the U.S. not have a compelling interest in the equal treatment of men and women?

  • P.B. Pike

    I’ve yet to hear any of the contributors who are happy about the Hobby Lobby decision square that company’s anti-Obamacare winning position with its pre-Obamacare history of offering health plans that covered the very contraceptives to which it later objected on supposedly “religious” grounds. Their silence is damning, in my opinion, so I say again: this case wasn’t even political. It was personal — and the five conservative justices on the Court eagerly bought it.

  • Waymon Vest

    For sure i am anti-Obamacare. We wouldn’t have Obamacare if not for our chief justice calling fines that obamacare can deal out TAX. I don’t understand how an honest person could do that. Helthcare needed overhauled but obamacare wasn’t the way.

  • Waymon Vest, I’m not 100 percent certain that the Roberts Obamacare decision was a bad one. Time will tell. He labeled the penalty a “tax,” and there is currently a suit to have that tax declared unconstitutional on the grounds that it did not originate in the House.

    What I found interesting was that the Court said that Obamacare WOULD have been unconstitutional were it not for the fact that it was essentially a tax. In other words, the Court said the Congress did not have the power under the Commerce Clause to impose the individual mandate. This reining in of Commerce Clause powers is cause for some hope, although there is a long way to go.

  • Waymon Vest

    ColRebSez, Seems that we could use a little help. Then again, maybe not. I do know that more people dislike Obamacare than like it. You wouldn’t think so by reading these comments though.

  • EAB

    CRS, I think you’re clinging onto a very slender hope indeed with the Origination Clause argument, because technically, the ACA was a revenue bill which originated in the House. It started life as a housing tax credit bill and was passed by the House, after which the Senate did a strike-all and tacked the ACA onto it.

    It’s up to legislatures to set their own rules and decide when and how much a bill can be amended. Some states like Iowa and North Dakota call this hoghousing or log-rolling, and have rules prohibiting it after certain deadlines. We’ve got some rules here about the code sections which can be affected, but clever bill-writing can dodge that easily. Like any other procedural trick, strike-alls can be and have always been used widely by both parties, for purposes both good and evil.

    I very seriously doubt that SCOTUS is going to interfere so deeply into internal legislative procedure as to rule on exactly when a bill is amended to the point it violates the Origination Clause. You and I both probably would not like the results if it did. This is the sort of question that should be resolved by Congressional parliamentarians before final passage, not ex post facto lawsuits.

    Here’s an article from the Heritage Foundation which notes that the Founders deliberately decided to weaken the Origination Clause to allow the Senate to amend. You’re basically making the same argument as Elbridge Gerry, and it’s even weaker nowadays given that the Senate is now popularly elected too.

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