Monday’s U.S. Supreme Court’s ruling on Hobby Lobby’s birth control coverage might ultimately have little impact on women. It’s the “might” that’s troubling.
The conservative court majority sided with Hobby Lobby and two other family companies that challenged, on religious grounds, a federal mandate that they cover all contraceptives for their employees. Hobby Lobby won, but the Obama administration has another remedy at hand: It can shift the contraceptive mandate to insurers, as it has done for religious nonprofit organizations.
The problem with the Hobby Lobby ruling lies in where its logic might lead in future court decisions. The court has never before held that for-profit corporations – as opposed to their individual owners – have religious rights.
As Justice Ruth Bader Ginsburg argued in her forceful dissent, a similar religious-freedom argument might conceivably enable a company owned by Scientologists, say, to deny coverage for antidepressants. Contraceptives themselves are fundamentally important to women: They can prevent cancer and life-threatening pregnancies, among other things.
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The opinion’s author, Justice Samuel Alito, insisted that he wasn’t “necessarily” building a foundation for such rulings. That’s less than reassuring.
Hobby Lobby – the company itself – was a softball the conservatives could knock out of the park.
The company offers generous benefits and pays far more than the minimum wage. Its Christian owners buy coverage for 16 forms of contraception but balk at four they believe can destroy fertilized eggs and are thus abortifacients.
They faced fines for refusing to include those four in their health plan, yet they might have come out ahead by dropping the health coverage. Providing health care, they argued, was also driven by their religious convictions.
They aren’t bad guys. For-profit companies can have genuine religious purposes – a Christian radio station that broadcasts religious music, for example. But their owners have chosen to join the secular economy; this requires operating under secular rules.
Hobby Lobby was invoking the Religious Freedom Restoration Act, which was written to carve out room for some religious practices that would be outlawed if they didn’t involve religion. The Democratic Congress of 1993 passed the law after the Supreme Court refused to protect Oregon Indians who had violated drug laws by using peyote in religious rites.
But peyote rituals and the like aren’t commercial enterprises that hire and fire people or exercise enormous sway over their employees’ lives. As Ginsburg pointed out, it’s too easy to imagine cases in which employees could be hurt if family corporations get more leeway to bring religion into the workplace.
As for Hobby Lobby, the Obama administration should now do what Alito suggested: Tell insurers to provide the coverage. If that’s the worst that comes out of this case, it won’t be catastrophic.