Updated on June 20 at 3:15 p.m. EST.
WASHINGTON, D.C. – This morning the U.S. Supreme Court decided closely held corporations with religious objections cannot be compelled to furnish potentially abortion-inducing drugs to their employees by a 5-4 decision.
The Religious Freedom Restoration Act of 1993 (RFRA) allows for closely-held corporations like Hobby Lobby to maintain their religious outlook and still do business, the majority ruled in a 49-page opinion written by Justice Samuel Alito. The law holds that government may only impose a mandate that burdens religious business owners' consciences if the government has a compelling interest in doing so and uses the least invasive means possible.
“We must next ask whether the HHS contraceptive mandate 'substantially burden[s]' the exercise of religion,” the justices wrote. “We have little trouble concluding that it does.”
“We reject HHS's arguments that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships,” they added. “The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their business as for-profit corporations in the manner required by their religious beliefs.”
The ruling holds that the HHS mandate is not the least invasive alternative. “The mandate plainly fails that test,” the opinion holds.
The five justices in the majority found it “unnecessary” to rule on whether the HHS mandate serves a compelling government interest, side-stepping the issue of whether assuring women's access to contraceptives is a common good. However, Justice Kennedy in his concurrence wrote “a premise of the Court's opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.”
Justices also chose not to comment on whether the HHS mandate violates the First Amendment, saying the RFRA alone invalidates the provision as applied to closely held for-profit corporations.
Chief Justice John Roberts joined Alito, Antonin Scalia, and Clarence Thomas on the majority decision in Burwell v. Hobby Lobby Stores Inc. (formerly Sebelius v. Hobby Lobby Stores Inc.) and Conestoga Wood v. Burwell. Justice Anthony Kennedy wrote a four-page concurring opinion to swing the decision in favor of Hobby Lobby.
The owners of Hobby Lobby and Conestoga Wood Specialites Corporation argued in court that the HHS mandate provision of the Affordable Care Act – which requires all employers to provide contraception, sterilization, and abortion-inducing drugs to female employees without charging a co-pay – violates their owners' evangelical Christian faith.
“Our family is overjoyed by the Supreme Court’s decision. Today the nation’s highest court has re-affirmed the vital importance of religious liberty as one of our country’s founding principles,” said Barbara Green, co-founder of Hobby Lobby. “The Court’s decision is a victory, not just for our family business, but for all who seek to live out their faith. We are grateful to God and to those who have supported us on this difficult journey.”
Family Research Council President Tony Perkins called the decision “one of the most significant victories for religious freedom in our generation.” Americans United for Life President and CEO Dr. Charmaine Yoest agreed it was ” a victory for common-sense, as pro-life Americans do not lose their First Amendment freedoms when they open a family business or when they value unborn life.”
The court's four liberal justices filed two separate dissents to today's ruling. One, authored by Justices Ruth Bader Ginsburg and Sonia Sotomayor, runs 35 pages and calls the majority opinion “a decision of startling breadth.” They strongly objected to the notion that for-profit corporations qualified for protection from laws that might violate its owners' religious views. Justices Stephen Breyer and Elena Kagan filed a separate one-paragraph dissent, joining Ginsburg siding with HHS but not commenting on the standing of for-profit corporations.
Hobby Lobby is the largest and only non-Catholic privately owned business to file a lawsuit against the HHS mandate. The company provides 16 of the 20 forms of contraception required by new federal regulations. But the owners opposed paying for or furnishing potential abortifacients like Ella and the morning-after pill to its female employees.
The decision suggests that the Obama administration could have had U.S. taxpayers underwrite the cost of contraceptives for corporations that refuse to decline them on religious grounds.
It also states the administration could implement a system similar to the law's “accommodation” for religious non-profits, unveiled in February 2013. The provision allowed non-profit organizations to note their religious objection in writing, and their insurance companies would then be compelled to provide the contraceptives to female employees for “free.” Pro-life observers dismissed the notion as little more than an accounting gimmick, saying the insurance companies would pass on the costs to the employers by charging higher premiums. The Little Sisters of the Poor have sued, saying participating in the system violates their religious freedom; justices specifically said they did not decide the constitutionality of the system for “all religious claims.”
But “HHS has provided no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections,” the justices wrote. “We therefore conclude that this system constitutes an alternative that achieves all of the government’s aims while providing greater respect for religious liberty.”
Hobby Lobby CEO David Green said, “This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law.”
Last June 27, the Tenth Circuit Court of Appeals ruled that Hobby Lobby had “established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm.” However, Conestoga Wood lost its case before the Third Circuit Court of Appeals last July.
The Hahn family, which owns Conestoga, says its devout Mennonite faith and belief that life begins at conception forbids it from complying with the mandate.
The Greens' son, Mardel, who operates 35 Christian bookstores, also joined the lawsuit.
The hobby chain, with more than 500 stores in 41 states, faced a penalty of $100 a day per employee or $1.3 million in daily fines for violating the HHS mandate. In all, Hobby Lobby faced $475 million a year in fines, Conestoga would have been slapped with $33 million, and Mardel's Christian book chain with $15 million in ObamaCare penalties.
The Supreme Court agreed to hear the cases last November.
Today is the last day of the Supreme Court's session. It will resume on the first Monday in October.