Six Common Myths About the Hobby Lobby Ruling Absolutely Debunked
I present the first post by a guest blogger, Kevin Arthur Perkins, on the Hobby Lobby case – he did a great job and I hope everyone reads, and spreads the great information here.
There is a lot of misinformation circulating about the Hobby Lobby case, and even the best news sources seem to have some inaccuracies. After going to the US Supreme Court’s published Opinion of the Court, this is what I found:
MYTH: Contraceptives are no longer covered. Not even the morning after pill.
FACT: All of the twenty contraceptives are provided through an alternative system provided by Health and Human Services (HHS). It is true that out of the twenty contraceptive methods approved by the FDA and now required by the law, Hobby Lobby only objected to the four that were abortion inducing (abortifacient). These include two “morning after pills” and two specific IUD’s. However, all twenty contraceptives are provided through an alternative system devised by HHS for religious nonprofits, and Hobby Lobby could have been switched over to this system without additional costs to the parties involved. The published Opinion of the US Supreme Court went so far as to say that it was “unlawful” for HHS to enforce the contraceptive mandate when this alternative was available.
The Supreme Court:
In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage. (emphasis mine)
Although HHS has made this system available to religious nonprofits that have religious objections to the contraceptive mandate, HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections. We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty. And under [the Religious Freedom and Restoration Act of 1993 (RFRA)], that conclusion means that enforcement of the HHS contraceptive mandate against the objecting parties in these cases isunlawful. (emphasis mine)
MYTH: Now employees have to pay for contraceptives out of pocket.
FACT: No cost increase to employees according to the Supreme Court’s findings. The system that HHS has devised provides contraceptives through a third party insurer instead of the employer. Even HHS concluded that there is “no net economic burden” for switching to this system.
The employees of these religious nonprofit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies[…].
HHS has determined that this obligation will not impose any net expense on issuers because its cost will be less than or equal to the cost savings resulting from the services.
MYTH: Hobby Lobby is a corporation, so it doesn’t have any religious rights.
FACT: Corporations are made up of “human beings who own, run, and are employed by them” who still have Constitutional and legal protections. The Court rejected the argument that the owners of companies forfeit their legal protections when they organize in one business form or another.
[W]e reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.
When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby […] protects the religious liberty of the humans who own and control those companies. […] Corporations, “separate and apart from” the human beings who own, run, and are employed by them, cannot do anything at all. (emphasis mine)
MYTH: This opens the door for anyone to opt out of anything they call “religious” belief.
FACT: Justice Ginsburg raised this objection, so the Majority addressed it directly. In the Majority Opinion, Justice Alito effectively closed the door to those who might want to start claiming all sorts of contrived “religious”exemptions based on this ruling. Furthermore, a religious exemption to a given law must fit the legal standard of a “sincerely held religious belief.”
[O]ur holding is very specific. We do not hold, […] that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” […] Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others”
MYTH: Companies will start cutting coverage just to save a buck.
FACT: Money is not a factor in this case. It’s worth saying again that HHS determined that switching Hobby Lobby employees over to the system created for nonprofits would have zero net cost to the employer, the insurer, or the employee. Money is a complete non-issue here.
As for which companies will be allowed to do this, the Supreme Court universally referred to Hobby Lobby and the other corporations grouped into this case as “closely held corporations”. This is not something new, but has a legal definition in tax law. They are formed under local state laws, but are limited by the IRS to have more than half of the stock value owned by five or fewer individuals, and cannot be a service corporation such as an accounting firm, law firm, engineering firm, or a medical practice. The laws governing closely held corporations vary from state to state, so they can vary in size and number of employees.
MYTH: Because they can simply opt out of providing coverage, Hobby Lobby is imposing its religious values on its employees.
FACT: There are penalties (or taxes, if you prefer)written into the law for opting out. If Hobby Lobby decides to drop insurance coverage altogether and even one single employee qualifies for a subsidy on one of the ACA exchanges, then Hobby Lobby would have to pay $2000 per employee every year, or roughly $26 Million. Per year.If on the other hand they decide to refuse to provide only those four contraceptives in question, they would be fined (or taxed) $100 per day for each affected individual; roughly $475 Million per year. In the words of the Court, “If these consequences do not amount to a substantial burden, it is hard to see what would.”
As for imposing religious values, it is equally hard to see how there is any imposition by Hobby Lobby when HHS could have switched them over to the other exchange with no change in coverage or cost increases. If anything – and let’s be completely honest here – the real imposition is the anti-religious sentiment being imposed upon people of faith. The Affordable Care Act has been fundamentally anti-religious in its implementation and execution – from the final vote in the Senate on Christmas Eve which made itinto law against a broad public protest, to the refusal of HHS to switch Hobby Lobby to another exchange so their consciences could remain clear.
The court concluded that the contraceptive mandate substantially burdened the exercise of religion by requiring the companies to choose between “compromis[ing] their religious beliefs” and paying aheavy fee—either “close to $475 million more in taxesevery year” if they simply refused to provide coverage for the contraceptives at issue, or “roughly $26 million” annually if they “drop[ped] health-insurance benefits for all employees.” Id., at 1141.
So, even the Court concluded that if the employees were to be switched onto the HHS system devised for nonprofits, “[t]he effect of the HHS-created accommodation on the women employed by Hobby Lobby and the other companies involved in these cases would be precisely zero.”
And so the big question is: Why didn’t HHS just do that in the first place?
All citations from the United States Supreme Court Majority Opinion (573 U. S. ____, 2014).
Thanks Kevin! Awesome job!
See also these related posts on Hobby Lobby: