Much of the government’s argument, and much of the hostile questioning of Hobby Lobby from the bench, has focused on the parade of horribles that would supposedly occur if Hobby Lobby wins. As I have explained, this parade of horribles has not occurred in the past (even though the government acknowledges that sole proprietorships and partnerships could raise religious exercise claims) and it would be prevented by RFRA’s compelling-interest test. In fact, Congress adopted the compelling-interest test precisely because Congress regarded it as “a workable test for striking sensible balances between religious liberty and competing prior government interests.” 42 USC § 2000bb(5).
Tuesday’s argument revealed a different, and genuine, parade of horribles that merits attention. Under questioning from Justice Kennedy, the Solicitor General was forced to admit that the Administration’s argument, if accepted, would mean that an abortion mandate could be imposed on for-profit corporations. Transcript 75-76. (I have made a similar observation.) Under the government’s argument, for-profit corporations have no religious-exercise rights at all (a claim that even Justices Breyer and Kagan seemed to take issue with). Thus, under the government’s theory, the only thing that protects such employers from being forced to pay for abortions is that the government hasn’t yet decided to mandate such coverage. (Indeed, under that same theory, incorporated ob-gyn practices could be required to perform abortions.)
(The concern about an abortion mandate is far from hypothetical. A pending Washington state bill would impose precisely this requirement. The bill has passed the state House and is awaiting action in the Senate, as discussed in this amicus brief from a Washington state business.)
The Solicitor General initially seemed to claim that while such a mandate could coerce profit-makers, it could not reach religious non-profits. Transcript 75-76. But in context it is clear that the Solicitor General meant merely that the Administration would agree that a religious non-profit would be allowed to bring a religious-exercise claim (i.e., would “have an ability to sue”). Under the government’s theory, the religious non-profit would always lose such a claim, because the religious non-profit would be “extinguishing statutorily-guaranteed health benefits of fundamental importance to those employees.” Transcript 82.
Imagine that the Administration issues a rule (or a future Congress passes a law) saying “Every woman has the right to an abortion from the health-care provider of her choice.” Under the government’s theory, all for-profit doctors’ offices and hospitals would lose at the threshold: they would not be permitted to raise any religious-exercise claims at all. As to a religious non-profit, the government’s position would be that a religious-exercise claim could be made but would always lose. That is because the crux of the government’s argument in Hobby Lobby is that a RFRA claim must fail where it would “extinguish a statutorily guaranteed right of a third party.” Transcript 82. If a non-profit Catholic hospital refuses to provide the statutorily-promised abortions, and makes a RFRA claim for protection, it would presumably lose because allowing the hospital to benefit from RFRA’s protection would allegedly impose burdens on third parties. According to the government, avoiding such third-party harms is automatically a compelling interest, so the religious claimant would lose.
That result cannot possibly be squared with RFRA’s plain text, or with its legislative history, which was quite consciously focused on such abortion-related mandates. Yet if the government gets its way at the Supreme Court, RFRA would provide no protection to anyone in that context.