Contraception, Healthcare, and the Legal Limits of Religious Expression on Businesses

March 26, 2014    By: DavidF @ 11:43 am   Category: Life

The Supreme Court heard arguments yesterday on whether for-profit businesses have religious freedom.  More specifically, whether two corporations run by Christian families could be exempt of the Affordable Care Act’s requirement that businesses that insure their employees provide free contraceptive to female workers.  Importantly, religious groups already have the exemption, but what about businesses directed and influenced by their religiously minded bosses or shareholders?  Should they be forced to run their businesses in ways that go against their religious values?

The two companies are Hobby Lobby, and Conestoga Wood Specialties (ran by a family of Mennonite Christians).  The family that runs Hobby Lobby opposes the obligation to give their female employees any contraceptives that prematurely end a possible life, such as the morning after pill.  The family that runs Conestoga oppose any medical procedures that prevent a possible life, and thus all contraceptives.

So who will win, the government or the businesses?  Importantly, the Supreme Court doesn’t just weigh both sides equally and decides which deserves a win more.  The Court relies on longstanding judicial procedure to determine outcomes.  Most know that in criminal cases, an accused can only be convicted if the are guilty beyond a reasonable doubt.  In civil cases generally, the the plaintiff wins if they have a preponderance of the evidence on their side; that is, there’s better reason to believe they should win than reason for them to lose.  However, when a person sues the federal government claiming that the government has infringed upon his or her rights, the Court goes through a more complicated procedure.

Leading up to the 1930s, the Supreme Court regularly struck down laws that regulated how business owners can run their businesses.  These decisions allowed employers to set harmfully long work weeks with extremely low wages.  In one case, the court passively allowed the continuation of child labor.  In 1938, after the Court had struck down several New Deal laws, the court flipped.  Decades of judicial activism ended.  The new standard that developed out of 1938 was this: if the government wants to achieve a legitimate government interest–that is, seeks to protect public health, safety, welfare or morals/criminal laws–then its action/regulation need only be rationally related to achieving that goal.  So if a business owner wants to set his employees’ 40 hour workweek wages below minimum wage claiming that the government law against that hurts his business (more specifically, claiming that the government infringes upon his rights of due process or just compensation), the government need only show that the hour/wage laws rationally protect the employees health or safety, which they can of course do.  In other words, as long as Congress acts within its constitutional limitations, any law that protects the government objectives I mentioned above will get upheld.

When a person shows that a government action infringes upon a fundamental right, such as free speech, the Court typically takes a far more activist approach, requiring that the government must show that their regulation/law achieves a compelling interest (not just a legitimate government interest), and that their regulation can’t be accomplished unless there’s no reasonable alternative to achieving their goal (not just be rationally related to achieving their goal).  However, the person exercising the right must show that the regulation/law creates a substantial burden in exercising his or her right.  In other words, the Court won’t strike down a regulation/law if it harms a person’s fundamental right in a trivial way.  On the other hand, if the government can show that its interest is compelling, and that no other alternative can accomplish that interest as well as the action they are taking, then the government will succeed.  Put another way, when a person shows that his or her fundamental right is substantially interfered with, the Court exercises activist judicial review and puts the burden of proof on the government to show that it should succeed.

Through most of our country’s history, the Supreme Court used activist judicial review to protect religious liberty.  But in 1990, the Court relaxed the standard they held the government up to in cases of religious liberty.  The Court held that if the law that’s being challenged doesn’t purposefully discriminate against religion, and advances a legitimate government interest (i.e. protecting public safety, health, welfare, or morals/criminal laws), then the court would uphold the law over a person’s the religious right.

In reaction, Congress passed the Religious Freedom Restoration Act (RFRA) in 1993 which reset the Court’s standard of review by law.  The Court, once again, had to use activist judicial review against government legislation.  That’s true at least on the federal level.  Interestingly, if you followed news about a recently vetoed bill in Arizona that critics alleged gave Arizona the power to discriminate the LGBT community, the bill’s purpose was to apply the RFRA standard to Arizona courts and was certainly not the gay-hating legislation that many people painted it to be.

Both Hobby Lobby and Conestoga argue that the Religious Freedom Restorations Act applies to for-profit corporations just as it does to people (or at least, businesses closely held by families or a small group of owners).  Congress, in its Definitions Act, includes corporations in the definition of persons, and the Court has already recognized that corporations have other rights, such as free speech.  Since the RFRA guarantees religious protection to persons, the Court should treat the corporations as religious entities.  Requiring them to act against their beliefs is not only a substantial burden, but if the government has a compelling interest in providing free contraception to women, it can do that itself (and thus, there’s a reasonable alternative to accomplish their compelling interest).  The question then is, should the RFRA extend to for-profit businesses?

In oral arguments yesterday, members of the Court pushed back on Hobby Lobby’s argument.  After all, what if a corporation’s owners decide that vaccination goes against their beliefs, or blood transfusions, and so an employee who is on the company insurance has to pay for those services out-of-pocket?  Should employees, who may not share the religious beliefs of the owners, be forced to comply?

On the other side, members of the Court posed the Attorney General a hypothetical: what if Congress, like Denmark, passed a law outlawing butchering animals according to halal or kosher practices.  Without RFRA protection, Muslim-run and Jewish-run slaughterhouses would be barred from running their corporations according to their beliefs.  Or what if Congress requires businesses to pay for their employee’s abortions?

Both deeply committed religionists and secularists may think the court’s decision should be clear, but most probably recognize the potential abuses that could result from a ruling in either direction.

I suspect that most readers here would argue that religious freedom should remain well guarded.  To add a contrary view, I think there are reasons why a devout Mormon might want religious expression somewhat limited in this case (I personally have mixed feelings, but the argument is worth making).  Although there was some disapproval midcentury for contraceptives, Mormonism doesn’t take a strong position against them today.  Mormonism, however, does take a strong position against abortion (with a few minor exceptions).  While many Mormons would prefer abstinence, a Mormon-based policy argument probably needs to understand that supporting Mormon values across the country requires choosing between the lesser of two evils.  Supplying free contraceptives probably leads to greater promiscuity.  However, most of the abortions that happen in the US are from unwanted pregnancies from women with low incomes and who can’t afford continuous access to contraceptives.  In other words, there’s good sense in believing that increased access to contraceptives accomplishes a greater societal good: stopping more abortions.  Companies, to some extent Hobby Lobby but especially Conestoga (Hobby Lobby provides some contraceptive care), thwart the greater societal interest of preventing abortions in the first place.  Convincing?  Let me know below.


  1. Wait, I think I missed something. What does this have to do with Ordain Women? ;)

    Comment by Jeff G — March 26, 2014 @ 6:53 pm

  2. Ha! Jeff, I tried so hard to come up with something on Ordain Women that hasn’t already been said, but nothing merited a whole blog post (in short: I think ordaining women could be a great thing, but not for the reasons OW gives). I had to consign myself to a cutting-edge issue on religious liberty. Aw well.

    Comment by DavidF — March 27, 2014 @ 9:30 am

  3. A few comments:

    Several times you use the term “activist judge” or a variant. Do you have any definition of activist judge, activist court or activist judicial review that is more rigorous than “a judge or court that made a decision with which I disagree”?

    You also make the claim that

    Supplying free contraceptives probably leads to greater promiscuity.

    This has been a repeated claim of conservative opponents of not just the ACA, but of fact-based sex education, of Planned Parenthood, and public health programs to increase contraceptive use. Unfortunately the claim appears to be false. A recent story in the LA Times reported a study of over 9,000 women that “a statistically significant decrease in the number of sexual partners participants reported having had in the 30 days preceding”.

    We can find broad disagreement on whether corporations should be treated like people in the eyes of the law. We can argue the wide range of belief and opinion on the rights and responsibilities the “Founders” intended. But let us please allow rational and scientific inquiry inform our debate.

    Comment by Evangelical Mormon — March 27, 2014 @ 11:14 am

  4. @evangelical mormon

    Here are some more statistics.

    Comment by Steve — March 27, 2014 @ 1:55 pm

  5. Evangelical Mormon,

    Thanks for drawing my attention to that study. I suppose that makes my hypothetical argument even more compelling.

    Activist judicial review typically means one of two things: 1. When a judge uses a case as a platform to make a much broader judicial ruling. But I’m using using activist judicial review to describe 2. Anytime a judge strikes down a law as unconstitutional. Longstanding judicial processes require judges to use activist judicial review when a law purportedly challenges a fundamental right, and the RFRA requires the judges to be activists when federal law challenges religious liberty.

    But there’s no denying that for the most people, when a judge strikes down a law they oppose, it’s justice, but when he strikes down a law they favor, its an activist judge wreaking havoc on democracy. That’s the colloquial version of the term.

    Comment by DavidF — March 27, 2014 @ 2:39 pm

  6. It may not carry any legal weight, but the fact that Hobby Lobby invests heavily in contraception devices has lost them any sympathy from me.

    Comment by Aaron — April 3, 2014 @ 10:35 am