What If You’re Wrong?

I really don’t have much to say about the Hobby Lobby case and the PPACA’s regulation requiring that employers provide birth control as a “no extra charge” component of the insurance they provide to their employees . Just about all that I can add is that sexual relations is not an insurable risk and, consequently, requiring birth control be provided as part of the package seems like a stretch if you’re adhering to anything remotely resembling insurance which I gather that the administration is not. It’s just a word.

See also here:

Contrary to protestations from certain entities that subvert all issues for political gain, the Hobby Lobby case is not about birth control or women’s rights or even universal health care. It is, in Dershowitz’s summation, about “whether or not the statutes in the penumbra of the Constitution require a religious exemption.”

An entire school of red herrings has been produced in arguing about this case.

I’m not a lawyer so I have no authoritative basis on which to remark about the law. Based on my reading it’s my understanding such as it is that the law of closely-held private companies is pretty mature and that they are generally held to be alter egos of their owners.

My impression, too, is that, regardless of the vitriol being poured out in the opinion pages, the government’s case is quite weak. I hold the outrageous and naive belief that the members of the Supreme Court generally ground their opinions in the law and I suspect they will in this case, too. That’s not to say that the Court doesn’t take other considerations into account as well, e.g. the Court’s reputation or possible future implications of their decisions. I think that partisanship, which since the members of the Court are human is necessarily a factor in its members’ decision, is way down on the list of reasons for Court decisions.

The Obama Administration has not fared particularly well with the Supreme Court and that’s not just due to the partisan divide. The large number of unanimous Court decisions that found against the administration is adequate refutation of that belief. Unless you think that Ruth Bader Ginsburg is a right-wing partisan hack.

Here’s my hypothetical question. What if you’re wrong? What if the Court finds unanimously in favor of the plaintiff, sending a rebuke to the administration?

21 comments… add one

  • PD Shaw

    My prediction has been that Hobby Lobby will win with more than five votes. I would be surprised by a unanimous vote because I think there is enough “play” in the balancing test that the odds are that someone will balance the factors differently. That’s the criticism of balancing tests. But if its unanimous, I think the Court understood this solely as a statutory interpretation issue and was comfortable that if its interpretation was incorrect, the legislature can amend the law. There is usually more rancor and concern about Constitutional cases because they bind and prevent current and future policies in unpredictable ways.

  • TastyBits

    Is there anything Hobby Lobby could not claim as a religious exemption? Is there an objective test for what is religious? Would blood transfusions qualify?

  • Haven’t the lower-court rulings been kind of all over the place? If anything is an indicator of how the Supreme Court would rule, I’d expect it to be that.

  • PD Shaw

    “Is there anything Hobby Lobby could not claim as a religious exemption?” No. Most of the law in this area, going back decades, are cases brought by prisoners, whom I assume have the time and inclination to ask for all kinds of accommodations. The question is not so much what claims can be made, but whether the executive can accommodate them without undermining a legitimate government function. A prisoner is not going to be able to successfully claim a right to go to Mecca, because it undermines the specific punishment being inflicted (loss of freedom of movement), but he can claim a right to dietary accommodation during Ramadan, because his punishment doesn’t directly have anything to do with eating.

    “Is there an objective test for what is religious?” No. The government is precluded by the Constitution from deciding what is a true religious belief.

    “Would blood transfusions apply?” Good question, and perhaps a Jehovah’s witness would make the claim, but I think one difference is that birth control coverage has been artificially grafted onto healthcare insurance by state law. Its not traditionally considered an insurable risk, so to ask for insurance that doesn’t cover birth control as an accommodation is basically asking for the right to buy policies common 20 years ago. Its not as clean for a JW to ask for the opportunity to purchase coverage that I doubt exists.

  • Cstanley

    Ann Althouse has repeatedly noted that the religious freedom in this case is based on statute (the Religious Freedom Restoration Act) not the more general rights in the Constitution? A plain reading of that statute allows for the exemption that Hobby Lobby seeks, and as Althouse notes, Congress could have written ACA to bypass RFRA but chose not to.

  • Cstanley

    That was meant to be a statement, not a question. I am not a uptalker, just a lousy typist.

  • Zachriel

    PD Shaw: “Would blood transfusions apply?” Good question

    Scalia answered that in Employment Division v. Smith by pointing out that if people could opt out of law based on religion, then no law would be binding. Rather, the issue is the Religious Freedom Restoration Act, and whether, under strict scrutiny, the government interest is compelling.

  • PD Shaw

    @Cstanley, there are three statutes that Congress could have amended that would have defeated this challenge:

    1. Affordable Care Act. Congress could have exempted the ACA from the RFRA or provided their own more specific religious accommodation language.

    2. Religious Freedoms Restoration Act. Congress could have limited its protections to natural persons, excluding artificial persons.

    3. Dictionary Act. Congress states that when it uses the term “persons,” it means corporations, as well as individuals, unless context indicates otherwise. Congress could have reversed this assumption.

  • I’m a bit puzzled as to how the federal government could be found to have a compelling interest in birth control. It seems to me that finding that it does has all sorts of problematic implications. For example, couldn’t birth control then be made mandatory? It also seems odd to me that the government could have a compelling interest in birth control without having one in births but that’s a different question.

  • PD Shaw

    @Zachrial, Congress overruled Scalia’s slippery slope concerns, which is why I don’t think they are all that instructive. The Courts grappled with the Sherbert test from 1963 to 1990 (Employment v. Smith), and Congress “restored” the test in 1993. I think the history indicates that there is enough flexibility in the test to avoid absurd outcomes, and at least under the statutory regime, Congress can override the Court’s decision without seeking to amend the First Amendment.

  • Andy

    I guess I’m pretty cynical about the whole , particularly what passes for arguments by advocates for each side. IMO this case is a perfect example of why we want to get employers out of the health care business.

  • steve

    Depending on the outcome, I am turning Christian Scientist. We can save oodles on our health insurance.

    Steve

  • Will Truman

    I think the compelling interest is in the government having the authority to define what does and does not constitute a health insurance plan.

  • To meet the standard of strict scrutiny, the level of scrutiny required when a law or regulation infringes a fundamental right, say, to free exercise of religion, the government must fulfill three requirements: compelling interest, narrow tailoring, and the least restrictive standard. What I think is being argued is “interest” rather than “compelling interest”. And your argument, that the government has a compelling interest in being able to define healthcare insurance is not narrowly tailored. It asserts a broad sweeping power that has heretofore been reserved to the states.

  • Zachriel

    Dave Schuler: I’m a bit puzzled as to how the federal government could be found to have a compelling interest in birth control. It seems to me that finding that it does has all sorts of problematic implications. For example, couldn’t birth control then be made mandatory?

    Making sure people have access to birth control is not the same as forcing people to use birth control.

    Dave Schuler: It also seems odd to me that the government could have a compelling interest in birth control without having one in births but that’s a different question.

    The government provides subsidies for children, including health and food programs, as well as pre-natal programs.

    PD Shaw: Congress “restored” the test in 1993.

    That’s right. Congress giveth, and Congress taketh away. The limits of religious objection to law is not a constitutional question (Employment v. Smith), but a legislative one (Religious Freedoms Restoration Act). As to whether corporations can be said to be religious is a separate question.

  • Cstanley

    The limits of religious objection to law is not a constitutional question (Employment v. Smith), but a legislative one (Religious Freedoms Restoration Act). As to whether corporations can be said to be religious is a separate question.

    If the case hinges on this question of whether or not rights apply to corporations as well as individuals, wouldn’t the court be inconsistent if it found that to be true in Citizens United but not here?

    I realize of course that there was widespread disapproval to the CU decision but it still stands, and if would think the consistency would matter.

  • Zachriel

    Cstanley: If the case hinges on this question of whether or not rights apply to corporations as well as individuals, wouldn’t the court be inconsistent if it found that to be true in Citizens United but not here?

    What does it mean for a corporation to have religion? A vote of the board? Does 51% mean the corporation has a sincere religious belief?

  • PD Shaw

    I believe Eugune Volokh believes the Court will find that the government has a compelling interest in improving health, and the more significant issue will be whether requiring Hobby Lobby to provide coverage for contraception is the least restrictive means of accomplishing that objective. I believe Justice Breyer asked the main question: Why can’t the government provide it itself, instead of forcing a third party to do so?

  • What does it mean for a corporation to have religion?

    It isn’t the mystery you’re making it, Zachriel. It has long been accepted legal doctrine that closely-held private companies are, essentially, alter egos of their owners.

  • Zachriel

    Dave Schuler: It has long been accepted legal doctrine that closely-held private companies are, essentially, alter egos of their owners.

    Within certain limits. For instance, they can’t discriminate based on race, even if they have a religious objection.

    The court may very well rule based on that distinction. They may also rule it’s not a compelling state interest.

  • Race is explicitly a privileged class under the Constitution. It’s not a good comparison.

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