Full effects of Hobby Lobby ruling will evolve over time

The Supreme Court’s ruling in Burwell v. Hobby Lobby was barely out of the clerk’s box June 30 before pundits, partisans and parties to related lawsuits were staking out claims about what the decision means.

About 50 cases already before various federal courts hinge on how the ruling is applied. Another 50 or so cases raise related questions about whether nonprofit organizations must comply with the provision of the Affordable Care Act challenged in the Hobby Lobby case, or with procedures established for religious groups to opt out of it.

The 5-4 ruling said, Hobby Lobby and Conestoga Wood Specialties–the two companies that sued–did not need to comply with a federal mandate to include a full range of contraceptives in employee health insurance.

Both companies’ owners are Christians whose family members run the businesses and who follow faith-influenced practices such as closing on Sundays. They had objected to having to cover all the forms of contraception in the government’s requirement, because some act as abortifacients.

The court said the federal government could have chosen ways to provide uniform access to contraceptives that were less of an infringement on religious rights. It said under the Religious Freedom Restoration Act, known as RFRA, such “closely held” companies can assert religious views that protect them from the mandate.

There were some near-immediate effects on pending cases. The Eternal Word Television Network, Mother Angelica’s operation, was granted an injunction allowing it to opt out of providing contraceptive coverage without being fined while its legal challenge proceeds. Half a dozen cases up for review by the Supreme Court were kicked back to lower courts to consider in light of the Hobby Lobby ruling. And a Christian college was granted an injunction while it challenges a requirement to submit paperwork for an accommodation allowing it to opt out of the mandate.

The ruling clearly changed the legal environment for faith-based objections by some for-profit employers to the contraceptive mandate. But realistically, what else it means will take years to shake out.

The 49-page majority opinion by Justice Samuel Alito, and a 35-page dissent by Justice Ruth Bader Ginsburg, set the stage for an immediate outpouring of analysis that covered a range of views.

“Stunningly bad for women’s health and starkly dismissive of women’s own religious beliefs,” wrote Marcia D. Greenberger, co-president of the National Women’s Law Center, in a piece posted on SCOTUSblog, an online forum about the Supreme Court.

“Justice has prevailed,’“ said a statement from Archbishop Joseph E. Kurtz of Louisville, Kentucky, president of the U.S. Conference of Catholic Bishops. “Now is the time to redouble our efforts to build a culture that fully respects religious freedom.”

The archbishop’s statement noted that the court clearly did not decide whether Catholic charities, hospitals and schools would have to comply with a paperwork-filing provision in the government’s accommodation for such groups, to which some entities, such as the Little Sisters of the Poor, have also objected to on religious grounds.

“Contrary to the doom and gloom about all manner of religious objections to come, the court recognized that RFRA claims would continue to be assessed on a case-by-case basis as they arise,” wrote Travis Weber, an attorney who is director of the Center for Religious Liberty at the Family Research Council, on a SCOTUSblog post. “The ‘sky is falling’ response is not credible in light of the court’s opinion.”

The sky may or may not be falling, but the ruling left plenty of issues up in the air.

For instance, what will constitute a “closely held” corporation? About 50 for-profit companies have pending lawsuits challenging provisions of the Affordable Care Act. The Becket Fund, a religious liberty law firm that represents Hobby Lobby and many other plaintiffs against the government, said in its online status report that 49 for-profit company cases will now return to lower courts for consideration in light of the Supreme Court ruling.

Among the considerations in lower courts will be whether those companies fit Alito’s construct of “closely held.”

In her dissent, Ginsburg said the family-owned Mars candy company, with 72,000 employees, would qualify, though it has not challenged the mandate. Newsweek reported that according to a Copenhagen Business School survey, about 90 percent of U.S. companies might qualify. On the other hand, Newsweek pointed out, the Internal Revenue Service has its own definition of “closely held” which calls for at least 50 percent ownership by five or fewer individuals.

As Archbishop Kurtz noted, Alito said the federal government already has a system—the accommodation—under which nonprofit religious organizations can self-certify that providing insurance coverage for contraceptives violates their religious beliefs. But Alito said the opinion should not be understood to mean any religion-based objection to requirements of the Affordable Care Act would withstand court scrutiny.

Alito specifically mentioned objections to vaccinations to protect public health as raising different legal issues.

Meanwhile, another 51 cases involving nonprofits are lining up for consideration by the Supreme Court. Those include EWTN, the Little Sisters of the Poor, other religious orders, religious publishing companies, numerous Catholic dioceses and Catholic and other church-run colleges.

Among them is Wheaton College v. Burwell, in which a temporary injunction was issued July 3, shielding the Illinois Christian school from complying with the requirements. Like the Little Sisters, the college objects to having to fill out the self-certification form directing a third party to provide the contested coverage so the institution does not have to do so.

The college argues that the act of filling out such a form makes the institution complicit in providing contraceptives to which it objects on religious grounds.

The Supreme Court’s order in the case said the college could sent a letter informing the HHS secretary “that it is a nonprofit organization that holds itself out as religious and has religious objections to providing coverage for contraceptive services, the respondents are enjoined from enforcement against the applicant the challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of appellate review.”

The court has not yet decided whether to hear the case itself.

And while those cases filter through lower federal courts to eventual review by the Supreme Court, congressional Democrats are trying a legislative approach to undoing the Hobby Lobby ruling. Twin bills introduced in the House and Senate would ban employers from refusing to include any health coverage that is guaranteed to their employees under federal law. The bills are unlikely to pass in the deeply divided Congress.