I’m not a lawyer, or an American. I’m just a Brit with an interest in the US Supreme Court. There’s a good chance my analysis of this case is miles off, the reason I’m blogging about this at all is that I feel that most other amateur blogs on the subject are painting an incorrect picture of the situation and the result. To try and minimise both my own possible incorrect analysis and any misrepresentation of the facts of the case I will be quoting and linking to the texts that were at issue in the case as well as the written opinion of the justices (something I’ve not really seen any other blogs do).
Recently the Supreme Court of the United States (SCOTUS) issued an opinion in a case called Burwell v. Hobby Lobby Stores. The issue of the case was whether the Affordable Care Act (ACA) could force religious employers to provide contraceptives that they considered abortive and against their religion. The employers felt that that this would violate the Religious Freedom Restoration Act (RFRA). The businesses in the case took issue with four of the 20 contraceptives that the ACA required them to provide as they “may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus” (syllabus page 2) which would be a problem as “the owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients” (page 2).
State of the Law
The two main legal texts at issue in this case are RFRA and the ACA. RFRA was democratically enacted by Congress in 1993 and the key part of the act for this case is:
42 U.S. Code § 2000bb–1
(a) In general
Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.
(b) Exception Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental interest.
The idea behind RFRA is to make sure that the Government cannot pass laws that burden someone’s exercise of religion unless it meets the conditions of (b)(1) and (2). ACA was democratically enacted by Congress in 2010 with the aim of increasing the quality and accessibility of healthcare in the US. They key part of the act for this case is:
42 U.S. Code § 300gg–13
(a) In general
A group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for—
(4) with respect to women, such additional preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration for purposes of this paragraph.
This requires employers to provide female employees with free access to twenty different kinds of contraceptives, which include the four that it’s argued are abortifacients.
The Supreme Court found that the contraceptive provision of the ACA met the (b)(1) requirement of RFRA. It was in the Government’s interest to provide free contraceptives to women. The problem came when assessing whether the ACA met the (b)(2) requirement of RFRA, and this is where the government shot themselves in the foot as they already knew that forcing the religious people to provide the contraceptive plans was not the least restrictive means of furthering the compelling governmental interest.
It turns out that there is already a system in place, that the Government had set up, for nonprofit religious organisation to cover female contraceptives without burdening their religious beliefs. To quote the main opinion of Justice Alito (page 43):
In the end, however, we need not rely on the option of a new, government-funded program in order to conclude that the HHS (Health and Human Services) regulations fail the least-restrictive-means test. HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. As we explained above, HHS has already established an accommodation for nonprofit organizations with religious objections. Under that accommodation, the organization can selfcertify that it opposes providing coverage for particular contraceptive services. If the organization makes such a certification, the organization’s insurance issuer or third-party administrator must “[e]xpressly exclude contraceptive coverage from the group health insurance coverage provided in connection with the group health plan” and “[p]rovide separate payments for any contraceptive services required to be covered” without imposing “any cost-sharing requirements . . . on the eligible organization, the group health plan, or plan participants or beneficiaries.”
The Government’s idea for this system is that it’s much cheaper for insurance providers to pay for contraceptives than for abortions and pregnancies, so by forcing them to do it they’re actually being made to save money. This shows the Government can implement a system that provides the contraceptives in a way that works for both parties, so the Supreme Court basically said that’s what they need to do.
The Role of SCOTUS
A lot of people have been complaining about the result. Some have said the court is biased against women, some have said they’re favouring religion. Reading the details of the case and the opinion given I can’t see how this isn’t just a case of the Court simply pointing out the conflict of two laws and fact that a solution already exists. Some people have even suggested the Court should stop taking high profile cases as it may be making them unpopular. The Supreme Court is not there to be popular. Congress and the President are the parts of the Government that need to be popular, the Supreme Court needs to operate independently of the ever changing will of the majority. They are there to make sure the current laws work and to make sure people are protected, especially the unpopular people.
In this case there was an issue with two democratically created laws of Congress and so the Supreme Court stepped in and pointed out the legal solution, it’s then up to Congress to go back and alter the laws if need be. It’s nothing to do with sexism or the religious opinions of the Court. Maybe it’s not a surprise after all that most bloggers are avoiding the actual texts of the case.