Good news, everyone. We don't have to keep holding our breath and feeling really anxious every Monday and Thursday morning because the Supreme Court is now only hours away from handing down its ruling in Sebelius v. Hobby Lobby Stores, Inc. This case is a really, really big deal. (So is Harris v. Quinn, the other case that looms large this morning.)
Maybe you haven't been paying attention to Hobby Lobby's challenge to the contraception requirement of the Affordable Care Act, or maybe you have been paying attention but have forgotten everything you know because the lower court cases and the Supreme Court oral arguments seem like forever ago. But don't worry, I got you. Here are some questions you may have about the case, answered by me Frankenstein-ing together some of my reporting over the last year.
Good luck to us all.
What is the Supreme Court?
No, just kidding. This isn't like that.
What is Hobby Lobby so mad about?
Hobby Lobby, a for-profit and privately held corporation owned by a family of evangelical Christians, sued the Department of Health and Human Services in September 2012 because it believed that the contraception requirement of the Affordable Care Act was an unconstitutional violation of its sincerely held religious beliefs.
No one has contested the sincerity of the religious beliefs held by Hobby Lobby founder and CEO David Green and his family, but the Greens are not on the hook to provide their 13,000 full-time employees with contraceptive coverage. In reality, their privately held corporation is responsible for that coverage. Because that’s what it means to be incorporated. So one of the questions before the high court right now is whether or not the company itself can have sincerely held religious beliefs, and -- if the court is willing to recognize corporate religion -- whether the contraception mandate places an “undue burden” on those beliefs.
And what beliefs are those, specifically?
Hobby Lobby has based its claim in its religious opposition to abortion; according to lawyers for the company, the main issue here is four forms of birth control that it doesn't want to cover because it believes they are abortion-inducing drugs. This is incorrect!
Hobby Lobby already covered 16 of the 20 methods of contraception mandated under the Affordable Care Act, but it didn’t cover Plan B One-Step, ella (another brand of emergency contraception) and two forms of intrauterine devices because of aforementioned ideologically driven and not medically based ideas about abortion.
“These medications are there to prevent or delay ovulation,” Dr. Petra Casey, an obstetrician-gynecologist at the Mayo Clinic, told the New York Times in a piece on the science behind emergency contraception. “They don’t act after fertilization.” As the Times noted, emergency contraception like Plan B, ella and the hormonal IUD do not work by preventing fertilized eggs from implanting in the womb. Instead, these methods of birth control delay ovulation 0r thicken cervical mucus to prevent sperm from reaching the egg, meaning that fertilization never even occurs. That said, when used as a form of emergency contraception, the copper IUD can interrupt implantation, but this still does not mean a pregnancy has occurred.
Here's Dr. Anne Davis on the difference:
An important distinction here is that fertilization is not the same thing as pregnancy for the very, very simple reason that these things take time. There are a lot of steps between fertilization and implantation being successful. For the average woman who is not on any kind of birth control, that process of fertilization is occurring over and over and over again and those women are not getting pregnant over and over and over again because many of those fertilizations never, ever implant.
There are all these things that have to happen for pregnancy to occur. I think if people think about the question of when a woman is pregnant, the answer seems pretty intuitive. When I go to somebody and ask, “How many times have you been pregnant?” I’m not asking, “How many times have you had fertilized eggs?”
And what's the law behind this legal challenge?
Hobby Lobby believes it should be exempted from complying with the new healthcare requirements because of the Religious Freedom Restoration Act (RFRA), a law passed in 1993 to protect individuals from having their rights trampled by the government. But a Supreme Court decision in support of Hobby Lobby's claim — an opinion that affirms that corporations can have sincerely held religious beliefs — would be a major break with centuries of legal history, and really distorted interpretation of RFRA.
Congress passed RFRA in response to a 1990 Supreme Court decision that allowed the state of Oregon to deny unemployment benefits to two Native American men who were fired for using peyote -- which was illegal in the state at that time -- as part of a religious ceremony. The majority opinion in that case held that a person’s religious beliefs are not sufficient grounds to break laws that are considered “neutral” or generally applicable, but Congress passed RFRA after concerns were raised that the ruling would infringe on the rights of individuals who belong to minority religion groups. The law was supposed to be a safeguard against big entities stomping all over the rights of individuals. Hobby Lobby is invoking it to do the exact opposite.
How does the business community feel about this?
If the Supreme Court sides with Hobby Lobby and rules that corporations are people with religious beliefs, the opinion would basically shred what’s known as the corporate veil (the principle that establishes a corporation as a distinct entity from its owners or shareholders). This would mess with a lot of businesses and how they do business.
Which may explain why corporate America has been pretty quiet about the case. As David H. Gans recently noted at Slate, “Not one Fortune 500 company filed a brief in the case. Apart from a few isolated briefs from companies just like Hobby Lobby and Conestoga Wood, the U.S. business community offered no support for the claim that secular, for-profit corporations are persons that can exercise religion.”
And where is public opinion?
What happens if the justices find that corporations can have faith?
Bad stuff. Weird stuff. If Hobby Lobby prevails in arguing that corporations can have sincerely held religious beliefs, the ruling would effectively make the kind of discrimination conservative lawmakers in Arizona tried to pass earlier this year with SB 1062 the law of the land.
“Denying birth control to your workers because of your own religious objections to it superimposes your own personal beliefs about conscience and faith onto your employees. So does refusing to serve a gay person due to a religious objection to their sexual orientation,” Ian Millhiser of the Center for American Progress wrote earlier this year. “If the Supreme Court winds up holding that one person’s faith can impose itself on another, which is exactly what the plaintiffs in Hobby Lobby and Conestoga Wood want them to do, then all the nightmare scenarios” -- rampant anti-LGBTQ and gender-based discrimination among them -- “imagined in the debate over the Arizona bill could become very real.”
But isn't this kind of hypothetical paranoia? Will employers really start trying to do bad stuff to their employees if Hobby Lobby wins their case?
Hobby Lobby is trying to deny its employees comprehensive healthcare. That's already some bad stuff right there. And if past is prologue, then yes, more employers will try to use religion to discriminate against employees. Like this school that didn't want to give women healthcare.
And what did the justices say about the case during oral arguments?
Justices Sonia Sotomayor, Elena Kagan and Ruth Bader Ginsburg dominated much of the questioning during the oral arguments back in March, and the three female justices seemed highly skeptical of Hobby Lobby's claims.
Sotomayor asked Paul Clement about the consequences of corporate religion. If corporations could claim a religious objection to providing contraception coverage, Sotomayor asked, couldn’t they also object to vaccinations or blood transfusions? Kagan pressed further, noting that there are a number of other medical treatments that are not considered legitimate under certain religious doctrine, and went on to ask if corporations should be able to object to covering those as well. Empowering corporations to select what healthcare to provide employees a la carte would mean, “Everything would be piecemeal; nothing would be uniform,” Kagan said.
Kagan also grilled Clement on Hobby Lobby’s claim under RFRA, an “uncontroversial law” that Hobby Lobby is attempting to use it to disrupt “the entire U.S. code.”
But Justice Anthony Kennedy seemed relatively sympathetic to Hobby Lobby's claims about abortion and the possibility that some future law may one day compel Hobby Lobby to pay for it. (Basically, the hypothetical rights of a corporation at some point in a future scenario that may never occur may matter just as much or slightly more than the very real rights of women and other workers currently existing in the world right now.)
So how is this all going to shake out?
There are a number of different possible outcomes -- some good, some not so good. Here's what Emily Martin, vice president and general counsel for the National Women’s Law Center, told Salon about best, worst and worst worst worst possible opinions in the case.
Anything else I should know about Hobby Lobby?
The Greens are opening a Museum of the Bible in Washington, D.C. and are designing a biblical curriculum they'd like to see taught in public schools.
Hobby Lobby also -- for all its piousness -- has a retirement plan that invests very heavily in the manufacturers of the forms of contraception it claims to abhor so much. According to a report from Molly Redden at Mother Jones, the Hobby Lobby 401(k) “held more than $73 million in mutual funds with investments in companies that produce emergency contraceptive pills, intrauterine devices, and drugs commonly used in abortions.”
The company has the option to opt out of these kinds of investments with a faith-based investing strategy -- but it hasn't -- as Redden points out:
To avoid supporting companies that manufacture abortion drugs—or products such as alcohol or pornography—religious investors can turn to a cottage industry of mutual funds that screen out stocks that religious people might consider morally objectionable. The Timothy Plan and the Ave Maria Fund, for example, screen for companies that manufacture abortion drugs, support Planned Parenthood, or engage in embryonic stem cell research.
The company is also financially linked to a pretty expansive right-wing network.
And the organizations and individuals filing briefs in support of Hobby Lobby have really terrible views about women and sex and are all kind of fringe-y banana brains like the people at the American Freedom Law Center. Here's an excerpt from that organization's brief in support of the company:
Thus, it has come to pass that the widespread use of contraceptives has indeed harmed women physically, emotionally, morally, and spiritually — and has, in many respects, reduced her to the “mere instrument for the satisfaction of [man’s] own desires.” Consequently, the promotion of contraceptive services — the very goal of the challenged mandate — harms not only women, but it harms society in general by ‘open[ing] wide the way for marital infidelity and a general lowering of moral standards.’ Responsible men and women cannot deny this truth.