More on the Hobby Lobby Case

Eugene Volokh hosts a genuinely excellent recap of the issues in the Hobby Lobby case before the Supreme Court, written by Stanford law professor Michael McConnell. Professor McConnell identifies four questions the Supreme Court must consider:

(1) Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2) Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3) Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4) Has the government satisfied the least restrictive means test?

His answer to each of those questions is “No” and he goes into some depth in the reasoning behind his answer. Here’s a brief sample:

Even accepting (arguendo) the notion that insurance coverage for contraceptives is a compelling interest, it is hardly obvious that the least restrictive way to provide that coverage is by forcing employers to provide it. Indeed, the government’s argument that Hobby Lobby should just drop insurance altogether demonstrates that the government actually does not view it as essential that people receive insurance through their employers as opposed to from other sources. The important point for the government, it seems, is that employees who work at Hobby Lobby have access to this coverage from some source.

This could be structured in any number of ways. The government could extend the same accommodation to the small number of businesses with this conscientious objection that it already has to religious employers. It could subsidize the contraceptive coverage directly. Employers with conscientious objections could compensate for not providing contraceptive coverage by adding other valuable coverage to the employees’ plans, thus ensuring that the employer receives no financial benefit from the objection and that the employees bear no net burden. The government could allow employers to substitute cash for coverage on a tax-free and tax-deductible basis.

If you’re at all interested in this case, whether in agreement with the government’s position, disagreement, or simple curiosity, you owe it to yourself to read this post.

20 comments… add one
  • jan

    That was an astute, detailed analysis of the Hobby Lobby case. However, if you read some of the comments following Volokh’s conclusion, the fact that he sided with the arguments of those challenging the mandate he is still considered an a**hole. It just doesn’t matter how fair or considerate an employer is to their employees when they are judged only on political ideology, and whether or not they go along with the menu demanded by those ascribing to social progressive causes.

  • PD Shaw

    The ACA is under legal attack from many corners using different angles, and resorting to quick and convenient arguments to defeat an argument on the one hand, leaves you with one less free hand for the other, and pretty soon your hands can’t hold water. And then all the lawyers can do is dance and look pretty.

  • PD Shaw

    I would like mixed metaphors for $500, Alex.

  • But on the third hand… 😉

    On a slightly more serious note, if the Obama Administration’s legal talent is spread too thin, it isn’t simply due to legal challenges to the PPACA. As Steve has repeatedly assured us, that didn’t start until last October.

  • Andy

    As a non-lawyer, I think he makes some solid arguments. I didn’t realize the contraception requirement wasn’t actually part of the law itself, but the result of regulatory action.

  • Ben Wolf

    it is hardly obvious that the least restrictive way to provide that coverage is by forcing employers to provide it.

    The insurance industry is providing contraceptives, not employers. This is no different than providing coverage for antibiotics and it’s just bizarre that in the 21st Century, large numbers of people see it differently. Why is there always outrage the moment lady-parts enter the equation?

  • Jimbino

    The strange thing about this case is that it costs an insurer more NOT to offer contraceptive and abortion coverage, since the costs of pregnancy are so much higher. So an insurance carrier could offer Hobby Lobby expensive coverage that does not include contraception or abortion, throw in those coverages for free, and make an excess profit.

  • mike shupp

    Let’s adopt a true free enterprise solution here. Give up the notion that contraception for women has to be treated as a medical issue. Don’t require that “the pill” has to be prescribed by a MD and that women receiving it need regular medical checks and the pill has to be dispensed by an authorized pharmacist. Just stock different varieties of oral contraceptives in drug stroes, groceries, ladie’s restrooms. etc. and let people just buy them without rigamarole. No age check, no ID check. Just sell them. Like bubble gum or condems. And count on the free enterprise system to keep bringing the price down.

    What could be more American?

  • I think it’s best to keep in mind that his isn’t about what’s rational or what’s the best policy or politics or economics or anything else other than what is the law.

  • PD Shaw

    @Ben, there was a line of controversial Supreme Court cases in the 20th century which resolved that issues regarding contraception and abortion involve deeply philosophical, moral issues on the nature of life to which reasonable people may disagree and for which its not the proper role of government to interfere. Roe v. Wade, for example.

    @Jimbino, the contraception mandate in the ACA is unique in preventing the insurance companies from utilizing any cost-control methods, like co-pays and deductibles to encourage generic or non-premium brands when possible. This coverage will become pretty expensive eventually.

  • Ben Wolf


    That’s legal reasoning; I’m talking about it in terms of social evolution, which judging by the continued controversy has been remarkably stagnant.

  • steve

    He makes good arguments, but I am still unhappy that this would considered for a corporation. I would have no problem with this if it was a partnership or family owned. Being able to have the legal protections of a corporation, and still have all the rights and privileges of individuals tips the balance way too heavily towards corporations.


  • PD Shaw

    Well, Ben, Hobby Lobby is not objecting to everything to do with lady-parts. Its not objecting to paying for fourteen types of contraception, or to ObGyn appointments, care for ovarian cancer,
    etc. Its objecting to things that it believes to be abortificants. And its the federal government arguing that Hobby Lobby has the reasonable option of not providing any healthcare insurance at all, it it doesn’t want to offer the entire list.

    I mean who is more concerned about lady-parts? All contraception must be free, but all other medical prescriptions are subject to co-pays and/or deductibles? Beginning August of 2012, right before the election, private plans had to cover contraception, and eliminate co-pays and deductibles. Interesting timing, no?

    I’m pro-choice, so I don’t have any moral hang-ups about any of this, but for me being pro-choice means I don’t want to argue about what is an abortificant or when or whether an abortion is ever justified. I don’t want it to be a subject of public policy. Privacy means to me that the government stays out of these issues. Its a shield from government intrusion, not a sword of intrusion.

  • PD Shaw

    @steve, Hobby Lobby is a closely held family business. The decision here might not address your concerns. And its hard for me to imagine the big publicly-traded companies wanting to involve themselves in this type of issue.

    There is also a larger philosophical question here about whether we believe people in a corporation are or should be expected to be amoral, i.e. not feel that their actions have any personal moral relevance. I don’t think they are or should be. Except for lawyers.

  • Guarneri

    PD – Questions:

    Be I an S or C corp, a partnership or LLC, if I am an employer and decide to offer a perk to employees called, say, a company car, can the government tell me what kind of car? I like black cars. Can the government force me to offer white ones because some employees like white? Or suppose some employees like metallic black vs flat black. Can’t they spring for the cost difference? Have I precluded them from doing so? Must said car have two seats or a government mandated four? Suppose I like Toyota’s. Can the government mandate only US made cars? Can they force an employer to offer cars to all employees?

    I’m having trouble understanding what interest or right (other than pure politics and regulatory meddling in private contracts) the government has in dictating the health care suite provided. Hobby Lobby isn’t discriminating by penalizing or firing employees who choose to purchase abortificants of their own will. They just say do it on your nickel, not mine. A Hobby Lobby employee can always quit and go somewhere else.

  • mike shupp

    Guarnari: “A Hobby Lobby employee can always quit and go somewhere else.”

    True. In the best of all possiple worlds, we’d all be sufficiently affluent and the labor market would be so open that no women would find any need to work for Hobby Lobby. Or for you.

  • Guarneri


    Tight labor markets aren’t an excuse for setting aside the ability for private parties to contract freely or for the goverrnment to dictate employment benefit packages. At least in my opinion.

    Positions in venture capital firms are some of the most difficult to obtain in America while pizza delivery jobs are not. Does it follow that VC firms must offer free contraception but not Papa Johns franchisees??

  • Be I an S or C corp, a partnership or LLC, if I am an employer and decide to offer a perk to employees called, say, a company car, can the government tell me what kind of car

    Remember that the free exercise of religion is explicitly Constitutionally guaranteed. That means that the standard for restricting it is higher than for other sort of conduct, like choice of car color.

    Also, remember that not every conscientious objector who claims religious objections is considered legitimate. There’s got to be some history to back the claims up.

  • Andy

    “And its the federal government arguing that Hobby Lobby has the reasonable option of not providing any healthcare insurance at all, it it doesn’t want to offer the entire list.”

    To me that is the most bizarre and weak argument on the government side.

  • PD Shaw

    Guarneri, I can’t pretend that the government doesn’t have some sort of argument that its policy is intended to promote health, not a simple abstraction.

    Its just that the justification is easily confounded by numerous other factors, so as to be pretty meaningless. There is the difference btw/ healthcare and insurance. As Mike mentioned there are factors concerning access to OBGYNs and pharmacies that restrict access to contraception, perhaps more so than its cost. And pregnancy is not a disease, so we are not trying to prevent it altogether (right Jimbino?), so we are worried about the health concerns of an “unplanned” pregnancy, which lead to some uncomfortable questions about whether its lack of access to free contraception that causes unplanned pregnancies or if there are other issues concerning education levels and propensity to plan. But those aren’t as uncomfortable as the arguments that the government has an interest in encouraging some of “those people” not to reproduce. Finally, how many people would not be able to afford contraception if it wasn’t covered? Medicaid covers it. Insurance plans prior to the 1990s didn’t, so was the pill a rare commodity before then?

    So back to the question, if the government directed employers to color their cars white or black as a means of preventing global warming, the regulation would be challenged in courts as lacking a rational basis (Constitutional claim) and depending on the regulatory program, as not supported by the record the President is expected to develop to support its rulemakings. Such a reg could be tossed out, but as Dave points out the courts scrutinize religious matters more stringently.

Leave a Comment