Losing Their Religion: A Law Professor Looks at Hobby Lobby

There are many reasons I think the Supreme Court is wrong as a legal matter in Burwell v. Hobby Lobby. I think corporations are entitled to certain kinds of basic economic privileges, but I don’t think corporations are “people” under the Religious Freedom Restoration Act (RFRA) or the First Amendment. And even if corporations are “people” under RFRA, the burden of religious freedom still must be “substantial” for a “person” to claim such an exemption, and as my colleague Abner Greene points out, the Court has found many similar indirect requirements to be insubstantial. This was a ruling by four conservative Justices who probably would overrule Roe v. Wade anyway, plus one activist libertarian Justice (Kennedy) who cares deeply about corporate freedom and who voted to strike down ObamaCare entirely two years ago. So the result in Hobby Lobby is infuriating but not surprising.

 But a friend today linked to an article in April that got my blood boiling. It turns out that Hobby Lobby has been investing its retirement funds in the pharmaceutical companies that produce the same birth control options that it refused to provide to its employees: various “Plan B” options and IUDs. The hypocrisy is stunning. And it confirms Justice Ginsburg’s dissent: for-profit corporations are created to pursue profits, not to pursue religious values.

So as long as we are talking about the corporate bottom line, what are the bottom line results of Hobby Lobby? Obamacare is built upon an employer-based private insurance health care system. The plaintiffs in Hobby Lobby were three companies often described as “family-owned companies,” and this decision supposedly applies only to “closely held” corporations, which have small numbers of shareholders who have no plans to sell their shares. But this Supreme Court and lower courts can interpret that phrase flexibly. And according to one study, it turns out that 90 percent of American businesses are “closely held” under the traditional definition. Many of those businesses are too small to be covered by ObamaCare, but the large and midsize companies employ millions of men and women, and their health care options are at risk. If a woman has her health care through her husband's plan, she is at risk, too. 

Here is my fear: Many companies will see savings in denying birth control options to their employees, and they will exploit this religious exemption further. Large and midsize "family" companies suddenly find religion and cut back on more birth control options. And I also fear that too many cynical commentators will say, “If birth control is such an important choice, then let those women take their services to another employer.” And I fear that too many Americans will agree with that simplistic response. Women should not have an extra burden in the employment market simply because their health care options have been politicized. 

Of course, I hope voters oppose the Supreme Court’s pro-corporate power rulings. But there is also some hope in the free market: Insurance companies know that birth control is less expensive than unwanted pregnancies, and they will charge Hobby Lobby and other companies more for their plans, cutting into their corporate profits. And maybe such corporations will have to pull their investments out of the lucrative pharmaceutical and insurance industries if they want to deny birth control to their employees. There is also hope that consumers will start to boycott Hobby Lobby, Conestoga Wood Specialties Corp., Mardel, and any others who deny their employees’ access to health care. Then, facing mounting costs and pressure, maybe these companies’ boards of directors will suddenly “lose their religion.” 

Jed Handelsman Shugerman is an associate professor at Fordham Law School, and is the author of The People's Courts: Pursuing Judicial Independence in America (Harvard U. Press, 2012). He is deeply grateful that his Jesuit institution provides his family with choice about their own health care.