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When Are Objections ‘Religious’ Objections?: Hobby Lobby, Wheaton College, and Contraceptive Coverage

On June 30th, the Supreme Court of the United States handed down its decision in Burwell vs. Hobby Lobby. The case required the court to consider whether closely held for-profit companies owned by individuals with sincere religious objections to abortion should receive a special exemption from providing healthcare coverage for contraceptives that may act after fertilisation but before implantation of an egg. Coverage of twenty types of contraceptives – including the four specific types that the owners consider to be abortifacients – is otherwise legally required as part of the employer-sponsored health insurance mandated by the Patient Protection and Affordable Care Act 2010 (ACA). For a more in depth overview of the facts of the Hobby Lobby case and the key questions before the court, see my previous post on this blog.

In this post, I focus on one of the central disagreements* between the majority and dissenting opinions: whether the legal requirement to provide broad health care coverage that includes access to contraceptives to which the owners religiously object is a ‘substantial’ burden on the exercise of religion (as the five-justice majority concludes), or is rather ‘too attenuated to rank as substantial’ (as the four-justice dissent argues.) The majority resolves this question, as I will show, in a way that vastly and inappropriately expands the influence of religion in the public sphere by rendering non-religious beliefs ‘religious’ and thus shielding them from appropriate judicial scrutiny.

The majority contends that the contraceptive mandate clearly does substantially burden the owners of Hobby Lobby: they must either 1) comply with the mandate, which they believe makes them facilitators of abortion, 2) drop coverage completely and instead pay up to $26 million in ‘shared responsibility tax,’ or 3) drop only coverage of the objectionable contraceptives and pay up to $475 million in fines. In contrast, the dissent argues that simply requiring Hobby Lobby to cover an option that a woman may or may not avail herself of after a private doctor-patient consultation does not measure up to the standard of substantial burden. Taking a closer look at the decision, the key divergence of the two approaches is on whether the Court has the authority to question whether a law does in fact substantially burden the exercise of religion given that the complainant claims that it does.

As the majority correctly notes, precedent dictates that the Court should not question the plausibility of a religious belief. Yet the dissent does no such thing. It confirms the sincerity of the plaintiffs’ convictions and does not challenge the plausibility of their deeply-held religious belief that abortion is the impermissible killing of a human being. Indeed, it does not question the factual connection between that belief and the practical case in question, that using certain contraceptives prevents the implantation of a fertilized egg. Nor does it question the religious belief that personhood is attained at the moment of conception and thus the destruction of a preimplantation embryo is properly conceived of as abortion rather than contraception.

Instead, the dissent questions whether – granting the sincerity and plausibility of these beliefs – requiring the plaintiffs to cover a contraceptive option for its employees represents a substantial burden on their exercise of religion.

As argued in my previous post, it seems clear to me that it does not. But the majority neither agrees nor disagrees with such an analysis. Rather, it refuses to take on the question altogether, vastly expanding the deference rightly afforded to religious beliefs to cover beliefs about the substantiality of a burden on those beliefs. It sets the precedent that the Court must not question the substantiality of a burden on free exercise of religion, but rather accept at face value the individual’s own claim about the weight of that burden.

This seems a deeply inappropriate extension. In the words of the dissent, we must be able to “distinguish between ‘factual allegations that [plaintiffs’] beliefs are sincere and of a religious nature,’ which a court must accept as true, and the ‘legal conclusion…that [plaintiffs’] religious exercise is substantially burdened,’ an inquiry the court must undertake” (citing Kaemmerling v. Lappin). Failure to properly distinguish between these two types of claims effectively creates a non-standard: the purpose of requiring a complainant to demonstrate a substantial burden, rather than just any burden, is rendered meaningless if the Court cannot adjudicate its weight.

As an example of what this extension means for the role of ‘religious’ beliefs in the public sphere, consider the complaint that Wheaton College lodged against the contraceptive mandate in the wake of Hobby Lobby. Wheaton College, unlike Hobby Lobby, is a religious institution that receives a special accommodation granted to religious nonprofits by the Department of Health and Human Services (HHS). Under this accommodation, a religious nonprofit may notify its insurance company that it will not cover contraceptives and that the insurance company, as mandated by HHS in such cases, must directly cover the costs of contraceptives for the nonprofit’s employees. To notify the insurance company of this state of affairs, Wheaton College is required to fill out a form confirming that it will take advantage of the accommodation.

Wheaton College, however, contends that merely filling out this form is an impermissible burden on its exercise of religion, because it requires the College to tell someone else to cover their employees’ contraceptives. The College understands this action as making it complicit in abortion, as its filing of the form ‘triggers’ someone else (the insurance company) to cover the option of contraceptives that may prevent implantation of a fertilised egg for someone else (the employee).

The Supreme Court has granted a temporary injunction to Wheaton College until its appeal can be handled, meaning that it is not required to fill out the form. Perhaps the Court will decide that the form is the ‘least restrictive means’ by which the government can fulfil its compelling interest in providing universal contraceptive coverage, in which case it could follow Hobby Lobby in refusing to question the substantiality of the burden the form places on the College. Or perhaps the Court will decide that it is not the College’s filing of the form that triggers the insurance company’s need to cover contraceptives but rather the underlying law, in which case it may argue that the College has misinterpreted the facts of the law rather than misinterpreting the burden placed upon it.

While both of these lines of argument for rejecting Wheaton College’s claim seem right to me, it seems even more clear that what Wheaton College is asked to do is simply not a substantial burden, and the compelling interest test and least restrictive means test must only be met if there is indeed a substantial burden placed on the exercise of religion. The burden Wheaton College claims – filing a form that triggers another company to cover an option that a female employee may use – cannot reasonably be understood as substantial. The decision in Hobby Lobby, however, sets the precedent that the Court cannot question the substantiality of the burden a law creates, regardless of how tenuous the connection between the religious objection and the legal requirement.

Three of the justices who dissented in Hobby Lobby dissent to the provision of the injunction as well. Writing for this dissent, Justice Sonia Sotomayor states sensibly and strongly, “Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened – no matter how sincere or genuine that belief may be – does not make it so.” Reigning in the precedent set by Hobby Lobby to reflect this understanding, whether by legislative or judicial means, is deeply important to restoring the legitimate limits of religious reasoning in the US.

*Although this seems to me the central disagreement between the justices, it is far from the only one apparent in the decision. See the chart below for a quick overview of how the two sides diverged:



Does RFRA apply?

Yes: Corporations fall under the definition of ‘persons’ in RFRA, although the purpose of this ‘fiction’ is to protect the “religious liberty of the humans who own and control those companies.”

No: RFRA does not apply to “commercial enterprises comprising employees of diverse faiths,” only “nonprofit religion-based organisations that exist to serve a community of believers.”

Substantial Burden Test

Passes: Providing such coverage “seriously violates their religious beliefs.” If they refuse, they will either have to pay up to $475 million in fines if they fail to provide the contraceptive coverage, or $26 million in ‘shared responsibility payments’ if they drop health care coverage completely.

Fails: “The connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial.”

Compelling Interest Test

No position: Finds it “unnecessary to adjudicate this issue.” Assumes that ensuring cost-free access to the contraceptives in question is indeed a compelling governmental interest.

Passes: The contraceptive coverage “furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence,” particularly the health problems for women and children stemming from unintended pregnancies.

Least Restrictive Means Test

Fails: The government itself already provides a less restrictive option to nonprofits with religious objections, which it could extend to closely held for-profit companies. The accommodation requires the nonprofit to inform the insurance company of its objection. The insurance company is then required to cover contraceptive directly for the nonprofit’s employees.

Passes: There is no less restrictive alternative for ensuring “comprehensive preventive care for women furnished through employer-based health plans.” Explains problems with a variety of proposed alternatives, including government coverage, extending the accommodation afforded to nonprofits to for-profit companies, and providing a tax credit to women for contraceptives.

Future Impact

Narrow: “[O]ur decision in these cases is concerned solely with the contraceptive mandate.” Would not protect religious objections to other insurance coverage mandates (e.g. immunizations) or anti-discrimination laws, because of different considerations about the least restrictive means for ensuring the compelling government interest in such cases.

Broad: “The Court, I fear, has ventured into a minefield.” Worries that the exemption would extend to religious objections to blood transfusions, antidepressants, medications with porcine ingredients, and vaccinations; or that the Court would not be able to block these objections without “evaluating the relative merits of differing religious claims” (citing Lee).

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1 Comment on this post

  1. Thanks for this post, Kyle. It’s very thoughtful and informative, giving a lot of background to these cases that I did not have.

    But I want to ask about your argument for this claim: “what Wheaton College is asked to do is simply not a substantial burden”. It wasn’t clear to me how you supported this.

    Presumably, Wheaton College is not claiming that filing this form is a substantial burden *qua filing forms*. I presume the college does a lot of form-filing already. The point must be, as you mention above, that filing this particular form (according to Wheaton) implicates the College in a process to which it morally objects.

    I presume you would agree that – in general – forcing someone to participate in a process to which they morally object constitutes a substantial burden upon that person. If this is right, then I assume your objection is to Wheaton’s claim that filing the form actually implicates them in the relevant way.

    Consider this case then. Imagine you are a bureaucratic working within an increasingly authoritarian state. One day, you are ordered to begin filing forms that authorize the executions of dissidents. You refuse. Your supervisors (who value your other work too much to simply get rid of you) say, ‘fine, but now you must file the alternate form, which acknowledges your refusal to file the primary form, and which will lead to your colleague down the hall filing the primary form and the execution of the dissidents via this means’.

    In this story, you might very reasonably say, ‘I refuse to sign either form! I refuse to have any role at all in your evil program!’ And if your supervisors now come back to you and *force* you to sign at least the alternate form… then you are substantially burdened.

    Do you disagree with what I say at the end of this story? Do you see a major difference between the logic of this story and the logic of what Wheaton College is claiming?

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