Wednesday, July 9, 2014

Hobby Lobby affects far more than “just four out of 16 contraceptive methods”

A protester in New York City / Womens eNews, CC BY 2.0

Some pundits make too much of the fact that Hobby Lobby owners “only” objected to “a mere four contraceptive methods out of 20” or “just IUDs and morning after pills.”  They cite this fact to support the notion that "the Liberals" are hysterical, fear-mongering, or at the very least, overstating things when it come's to the Supreme Court's decision.  See Matthew Dowd on “This Week” on Sunday, The National Review (“Hobby Lobby Actually Lavishes Contraception Coverage,”) The Weekly Standard (“Hobby Lobby Hysteria,”) and others herehere, and here.

Those folks missed something important: Hobby Lobby wasn't the Court’s only material action related to the Affordable Care Act contraceptive mandate last week. 

The day after issuing the Hobby Lobby decision, the Supreme Court issued a series of summary dispositions in six other cases, ALL of which involved employer and/or corporate objections to ANY form of contraception.  The Court first vacated three decisions where lower courts held these owners/corporations did not have a valid RFRA claim, and directed those courts to reconsider Autocam, Eden Foods, and Gilardi in light of Hobby Lobby.  It then denied cert (refused to review appeals courts’ decisions) in three other cases where lower courts held the owners and/or corporations had valid RFRA claims [Government’s appeals of Gilardi, Newland, and Korte.]

Vacated Decision #1 – AUTOCAM (Case history, summary, court opinions at the link, courtesy of Michigan Law School’s “Civil Rights Litigation Clearinghouse”) 

[T]he Kennedys believe that they cannot direct their closely held company’s health insurance plan to ‘provide, fund, or participate in health care insurance that covers artificial contraception, including abortifacient contraception, sterilization, and related education and counseling.’” Autocam at p. 4The Sixth Circuit held that neither the Kennedy family nor their two manufacturing corporations had a valid RFRA claim against the mandate: “Autocam is not a ‘person’ capable of ‘religious exercise’ as intended by RFRA.”  Autocam at p. 11.  “The decision to comply with the mandate falls on Autocam, not the Kennedys. For this reason, the Kennedys cannot bring claims in their individual capacities under RFRA, nor can Autocam assert the Kennedys’ claims on their behalf.” Autocam at p. 9. 

Vacated Decision #2 – EDEN FOODS     

“Michael Potter … sole shareholder of Eden Foods, Inc. … [asserts that he] has ‘deeply held religious beliefs’ ‘that prevent him from … supporting contraception, abortion, and abortifacients.’” Eden Foods at p. 3 (emphasis added.)  The Sixth Circuit, relying heavily on its Autocam decision, held that neither Potter nor his natural food corporation had proven a valid RFRA claim.   

Vacated Decision #3 – GILARDI 

"[T]he Gilardis oppose contraception, sterilization, and abortion.” Gilardi at p. 4 (emphasis added.)  This newly-vacated decision was a bit different from the other two.  Here, the individual litigants had actually won their arguments – the Court found they had RFRA-protected interests and were entitled to an order preventing enforcement of the mandate while the lawsuit was pending.  But their corporations’ RFRA claims failed, because “… for now, we have no basis for concluding a secular organization can exercise religion.” Gilardi at p. 15.  Nonetheless, Freshway Foods and its sister company appealed the “adverse” finding that secular corporations do not have an independent free exercise interest that has ever been recognized by the Supreme Court.  The Supreme Court vacated this decision after it recognized such an interest in Hobby Lobby.

Cert Denial Case #1 – government appeal of GILARDI 

The government also appealed the Gilardi decision – its petition was summarily denied on July 1.    

Cert Denial Case #2 – NEWLAND 

The Newlands and their HVAC manufacturing company Hercules Industries, Inc. “contend that compliance with the Regulation would violate their sincerely held religious beliefs about contraceptives.”  Newland at p. 4 (emphasis added.)  The Tenth Circuit upheld a court order preventing enforcement of the contraceptive mandate, finding that plaintiffs had RFRA-protected interests that would be irreparably harmed and were likely to prevail on their ultimate claim.  It relied on its decision in Hobby Lobby, noting “Our precedent holds that Hercules [Industries, Inc.] is a ‘person’ within the meaning of RFRA, the Regulation substantially burdens its religious exercise, and the Regulation fails to satisfy strict scrutiny.” Newland at p. 7.  The Supreme Court let this reasoning stand.

Cert Denial Case #3 – KORTE 

The Kortes and their construction company “seek to manage their company in a manner consistent with their Catholic faith, including its teachings regarding the sanctity of human life, abortion, contraception, and sterilization.” Korte atp. 2 (emphasis added.)  The company’s pre-mandate 2012 group insurance policy covered contraception, but the Kortes (the company’s sole shareholders) didn’t “discover” this until the contraceptive mandate occurred. Korte at p. 2.  Clearly, this is a deeply-held matter of conscience, since they apparently couldn’t be bothered to even review the terms of the policies they voluntarily purchased until contraception coverage became a hot political issue. 

Nonetheless, the Seventh Circuit held that the Kortes were entitled an order preventing the government from enforcing the mandate against them while their lawsuit was pending because they were reasonably likely to prevail on their RFRA claim and had established that they would experience an irreparable harm.  The Court reserved the questions of whether the government’s interest was compelling, or its solution was narrowly tailored, because those issues hadn’t been addressed by the parties yet. Korte at p. 5.  

Yes, Hobby Lobby and its Southern Baptist owners (and, in the consolidated case, Conestoga Wood and its Mennonite owners) "only" objected to providing coverage for two types of morning after pill and two types of IUD.  But Hobby Lobby makes it very difficult for the government to prevail in the 40-some other federal cases around the country where for-profit corporations challenged the contraceptive mandate, including the six cases that the Supreme Court specifically dispensed with last Tuesday. 

"The Liberals" aren't fear-mongering.  We're paying attention to the whole story.  Just for the record.

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