A few things the Hobby Lobby ruling won't do

Reuters

Anti-abortion demonstrators cheer as the ruling for Hobby Lobby was announced outside the U.S. Supreme Court in Washington June 30, 2014.

Article Highlights

  • Women have the same rights they had all through President Barack Obama's first term.

    Tweet This

  • The key questions for a court would be: Does the employer have a sincere religious objection to facilitating a transfusion for someone else?

    Tweet This

  • The courts aren't going to be passing judgment on the wisdom of different religious teachings.

    Tweet This

Here's an easy way to cut through the arguments and counterarguments surrounding today's Hobby Lobby ruling from the U.S. Supreme Court: Think back to 2012.

Does the court's ruling -- in which a majority held that Hobby Lobby Stores Inc. and other private employers can be exempted from a requirement in Obamacare to cover contraceptives in their health-care plans -- represent a terrible blow to women's rights? Not really: Women have the same rights they had all through President Barack Obama's first term. At that time, federal law did not require most employers to cover contraceptives.

Does the ruling mean that employees' use of contraception depends on the religious views of their bosses? Again, no more than it did in 2012.

Experience should also inform our evaluation of one of the main arguments against the ruling: that it will bring forth lawsuit after lawsuit as Scientologist employers make religious objections to covering antidepressants, Jehovah's Witnesses balk at covering blood transfusions and so on.

That's the argument with which Justice Ruth Bader Ginsburg closed her dissent to the decision, along with the warning that ruling on these cases will require courts to judge "the relative merits of differing religious claims."

This prospect isn't realistic. For most of U.S. history, it has been just as permissible for employers to refuse to cover antidepressants and blood transfusions as it has been for them to refuse to cover contraceptives. Yet we have seen no titanic social conflicts -- indeed, no visible social conflicts at all -- over this issue.

As Justice Samuel Alito noted in his opinion for the court, the Department of Health and Human Services made Ginsburg's argument during the litigation over the case. But it provided no evidence that employer coverage plans excluded these items before the Affordable Care Act was put in place, or that any employers have sought exemptions from having to cover such items.

Let's say an employer did seek an exemption -- under the Religious Freedom Restoration Act that governed the Hobby Lobby decision -- to a regulation requiring him or her to cover blood transfusions. The key questions for a court would be: Does the employer have a sincere religious objection to facilitating a transfusion for someone else? Does the regulation serve a compelling interest? Does it impose a substantial burden on the employer's beliefs? And is there a way to serve that interest while imposing a lesser burden?

None of those inquiries, performed the same way Alito performs the inquiry in the Hobby Lobby decision, requires passing judgment on whether the religious belief is a sound or compelling one.

There may be a case filed here or there. But nothing in the past or present suggests there will be a flood of litigation about Scientologist health plans. The courts aren't going to be passing judgment on the wisdom of different religious teachings. And access to blood transfusions will be affected by this decision even less than access to contraception will be.

Also Visit
AEIdeas Blog The American Magazine
About the Author

 

Ramesh
Ponnuru

What's new on AEI

Defeating ISIS: AEI experts weigh-in before the president’s address on Wednesday
image Degrading, defeating, and destroying the Islamic State
image Wealth Building Home Loan: Building wealth through homeownership and retirement savings
image The $3 iPhone
AEI on Facebook
Events Calendar
  • 15
    MON
  • 16
    TUE
  • 17
    WED
  • 18
    THU
  • 19
    FRI
Tuesday, September 16, 2014 | 5:00 p.m. – 6:00 p.m.
The Constitution as political theory

Please join us for the third-annual Walter Berns Constitution Day Lecture as James Ceasar, Harry F. Byrd Professor of Politics at the University of Virginia, explores some of the Constitution’s most significant contributions to political theory, focusing on themes that have been largely unexamined in current scholarship.

Event Registration is Closed
Wednesday, September 17, 2014 | 8:10 a.m. – Thursday, September 18, 2014 | 1:30 p.m.
Third international conference on housing risk: New risk measures and their applications

We invite you to join us for this year’s international conference on housing risk — cosponsored by the Collateral Risk Network and AEI International Center on Housing Risk — which will focus on new mortgage and collateral risk measures and their applications.

Event Registration is Closed
Thursday, September 18, 2014 | 2:15 p.m. – 3:00 p.m.
Speaker of the House John Boehner on resetting America’s economic foundation

Please join us as Speaker John Boehner (R-OH) delivers his five-point policy vision to reset America’s economy.

Friday, September 19, 2014 | 9:15 a.m. – 11:00 a.m.
Reforming Medicare: What does the public think?

Please join us as a panel of distinguished experts explore the implications of the report and the consumer role in shaping the future of Medicare.

No events scheduled this day.
No events scheduled this day.
No events scheduled this day.
No events scheduled this day.