The follow up case to Hobby Lobby is now headed toward the Supreme Court and that means we’ll get to find out whether the conservative majority actually meant what they said in that ruling about whether the secondary accommodation being constitutional.
Some background for those who might not remember the details. The Hobby Lobby ruling extended RFRA coverage to closely-held for-profit corporations, ruling that the provision in the Affordable Care Act requiring for-profit companies to cover contraception in their group health plans was not the least restrictive means of achieving the goal of maximizing the availability and affordability of birth control. There were other ways that the government could go about doing that which would not constitute a substantial burden on religious freedom. Specifically, the court said:
The Government has failed to satisfy RFRA’s least restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion. The Government could, e.g., assume the cost of providing the four contraceptives to women unable to obtain coverage due to their employers’ religious objections. Or it could extend the accommodation that HHS has already established for religious nonprofit organizations to non-profit employers with religious objections to the contraceptive mandate. That accommodation does not impinge on the plaintiffs’ religious beliefs that providing insurance coverage for the contraceptives at issue here violates their religion and it still serves HHS’s stated interests.
The “secondary accommodation” referred to here is one that was given to religious non-profits, which do not have to cover contraception in their group policies but instead can just inform the government that it has a religious objection to doing so and the government will then require their insurance carrier to provide a rider that covers contraception outside of that group policy. But many religious non-profits have objected even to that, claiming that it makes them “complicit” in making birth control available by the mere act of informing the government that it wishes to accept the exemption.
The Obama administration almost immediately did exactly what the court had suggested as the least restrictive means, extending that secondary accommodation to closely-held for-profit companies. That affected a whole bunch of pending lawsuits, including one in the 3rd Circuit where the plaintiffs are both for-profit and non-profit corporations. The 3rd Circuit Court of Appeals ruled a few weeks ago that the secondary accommodation eliminated any religious freedom problem for those plaintiffs, and this week Justice Alito, who wrote the Hobby Lobby ruling, granted a stay of that ruling. One presumes that the Supreme Court will grant cert in the case.
This will be a test, quite clearly, of whether Alito and the conservative majority were being honest. They stated explicitly that the secondary accommodation “does not impinge on the plaintiffs’ religious beliefs.” Did they mean it? Or will they extend Hobby Lobby even further and rule that even though the law grants an exemption to all of those institutions, that still isn’t enough? We won’t know the answer to that until next term.