In a confused essay in the National Catholic Reporter, Fr. Thomas Reese contends that the Hobby Lobby ruling is a “mixed blessing” for Catholic bishops. Fr. Reese claims, in particular, that “the decision’s discussion of the accommodation granted to religious corporations will make it very difficult for the bishops to win their case against it.”
One has to wonder whether Fr. Reese somehow imagines that the Catholic bishops would have been better off if Hobby Lobby had lost.
Notre Dame law professor Carter Snead explains on SCOTUSblog how a “careful reading” of the passages that Fr. Reese cites in fact “offers a great deal of hope” to nonprofit religious institutions challenging the accommodation. I provided my own similar assessment here. Without repeating all that Professor Snead and I have said, let me address the defects in Fr. Reese’s assessment.
1. Fr. Reese ignores, for starters, that the Court’s ruling on the question whether the HHS mandate imposes a substantial burden is an important victory for nonprofit Catholic institutions challenging the accommodation. Had the Court instead adopted the bizarre reasoning of Justice Ginsburg’s dissent—in which a massive fine isn’t a substantial burden because the connection between the religious objections and the use of the objected-to drugs and devices is “too attenuated”—the challenges to the accommodation would also fail.
Fr. Reese claims that the bishops objected to the accommodation because “they felt that participating in the process, even by just filling out a form saying they objected to the mandate, would violate their consciences.” His claim badly misses the authorizing role that the self-certification form plays. But, even if his claim were right, the Court’s ruling on substantial burden means that the accommodation does substantially burden those who sincerely believe that “just filling out a form … would violate their consciences.”
2. Fr. Reese misunderstands the role that the accommodation played in the Court’s reasoning. As Professor Snead and I explain, the existence of the accommodation shows that the mandate is not the least restrictive means of advancing a compelling governmental interest. Far from saying that the accommodation “is wonderful,” the majority expressly refrains from addressing whether the accommodation would satisfy RFRA.
Fr. Reese is also wrong in asserting that the Court “accepted the HHS argument that, since it is cheaper for insurance companies to pay for contraceptives than for births, [under the accommodation] there would be no cost to pass on to the corporation.” The Court recited HHS’s position on that point in order to show that the Obama administration was estopped from disputing that the accommodation fully serves its stated interests.
As it happens, a recent report from the real world indicates that the accommodation isn’t working out at all as HHS claimed it would—and that the Hobby Lobby ruling might render the accommodation even more dysfunctional.
3. In that same real world, judicial results have already occurred that are difficult to reconcile with Fr. Reese’s pessimistic take. In the immediate aftermath of the Court’s ruling, two federal courts of appeals granted religious nonprofits the same relief that the Court had granted to the Little Sisters of the Poor, and a judge on one of those courts delivered a powerful opinion against the accommodation. On the evening of the ruling, the Court itself temporarily barred enforcement of the accommodation against Wheaton College.
4. Fr. Reese mistakenly states that the majority “granted that the government had a compelling interest in providing contraceptives to women.” Instead, the majority merely assumed arguendo the existence of a compelling interest.
As I discuss in point 4 here, the Seventh, Tenth, and D.C. Circuits have already ruled that the HHS mandate does not serve a compelling governmental interest. Because nothing in Hobby Lobby overrides circuit precedent on that issue, challengers to the accommodation should prevail in those circuits. And challengers in other circuits can prevail either by showing that the accommodation doesn’t serve a compelling governmental interest or by showing (as Matt Franck outlines) that the accommodation itself isn’t the means that is least restrictive of the religious liberty of objectors.
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Bottom line: The American bishops and others challenging the accommodation are indisputably better off as a result of the Hobby Lobby victory. That doesn’t mean that victory is assured. But this would be a foolish time to abandon the fight.