Striking Down Hobby Lobby Strawmen

by Patrick Brennan

Two of the liberal arguments against the corporations looking for an exemption from the HHS mandate requiring companies offering insurance to cover a range of forms of birth control rely on slippery-slope arguments. If companies can offer insurance that doesn’t cover certain birth-control methods, what’s stopping them from not covering, say, vaccines or blood transfusions? And if Hobby Lobby and Conestoga Wood Specialties can get an exemption, what’s stopping, say, Apple from claiming some kind of religious belief?

But these arguments aren’t very compelling, not least because they are largely hypothetical, as the majority opinion notes:

HHS and the principal dissent argue that a ruling in favor of the objecting parties in these cases will lead to a flood of religious objections regarding a wide variety of medical procedures and drugs, such as vaccinations and blood transfusions, but HHS has made no effort to substantiate this prediction. HHS points to no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items.

The dissenting opinion, authored by Justice Ruth Bader Ginsburg, suggests that the court risks a number of these potential entanglements but doesn’t offer empirical evidence for their relevance. But aside from the fact that there really is very little evidence that companies will propose such policies, the decision today is also narrowly tailored, meaning that the decision basically says such hypothetical companies will have to make their own case that they’re complying with the Religious Freedom Restoration Act (the statute that the HHS mandate was found to violate): 

In any event, our decision in these cases is concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat thespread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.​

Moreover, the ruling only applies to closely held corporations, which the IRS defines as firms where 50 percent of the value of the corporation is held by five or fewer individuals. That happens to be a very common arrangement — more than 90 percent of U.S. businesses, apparently, meet the criteria — but they only employ half of U.S. workers, and any firm with fewer than 50 employees (i.e., most the closely held firms) is already exempt from most of Obamacare’s mandates, including this one. The vast majority of large corporations provided contraception coverage before the ruling, and no for-profit corporation remotely as large as Hobby Lobby (a multibillion-dollar-a-year firm with 20,000 employees) has challenged the rule.