U.S. Bishops Say Fight Continues After Hobby Lobby Ruling

‘Justice has prevailed,” said two U.S. archbishops, commenting on the U.S. Supreme Court ruling in the Hobby Lobby case on June 30. The court determined that certain “closely held” private businesses can be exempted from a government requirement to include contraceptives in their employee health insurance coverage because of the employers’ religious objections.

“We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business,” said Archbishop Joseph E. Kurtz of Louisville, Ky., president of the U.S. Conference of Catholic Bishops, and Archbishop William E. Lori of Baltimore, chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty.

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The court in its 5-to-4 ruling said that Hobby Lobby and Conestoga Woods, two family-run companies that objected to the government health insurance mandate that employees be covered for a range of contraceptives, that includes some considered to be abortifacients, are protected from the requirement of the Affordable Care Act under the Religious Freedom Restoration Act.

Activists for both sides of the issue gathered outside the U.S. Supreme Court on a hot Washington morning awaiting the decision. When it was announced, supporters hailed it as a victory for religious liberty; opponents called it a setback to women’s health care.

The bishops’ statement noted that the court left the door open on other cases that are currently winding their way through the courts and that object to an Obama administration “accommodation” that would allow objecting religious employers to direct their insurers or third party insurance administrators to provide the required contraceptive coverage.

The statement said: “The court clearly did not decide whether the so-called ‘accommodation’ violates R.F.R.A. when applied to our charities, hospitals and schools, so many of which have challenged it as a burden on their religious exercise. We continue to hope that these great ministries of service, like the Little Sisters of the Poor and so many others, will prevail in their cases as well.”

Writing on America’s blog In All Things, Thomas C. Berg, a professor of law and public policy at University of St. Thomas School of Law in Minneapolis, Minn., said that the ruling shows “R.F.R.A. working as Congress intended. The statute says it’s meant to ‘strike sensible balances between religious liberty and competing governmental interests.’ Courts should examine each case’s context; the government can win if, but only if, it shows that other means of regulation won’t be successful in achieving its important interests.

“On contraception coverage, the fundamental question was not whether it would be provided at all, but who would pay: if ‘insurer pays’ works, why coerce the employer who has religious scruples?” Berg wrote. “To this extent—and despite all the bloviating on cable news and social media—Hobby Lobby is a narrow decision, very unlikely to spawn widespread exceptions from commercial regulation.” He added that a footnote in Justice Samuel Alito’s majority opinion “points toward some revised version of the insurer-pays solution, with a minimal trigger like that in the Little Sisters of the Poor case: a simple notice of objection instead of a ‘designation,’ and deliverable to the government rather than directly to the insurer.”

Berg writes: “The government’s loss in Hobby Lobby should force it to the negotiating table, to come up with such a notice.… I hope the nonprofit plaintiffs will accept such a notice. For their own part, they must recognize the line between justifiably seeking to free themselves from providing coverage and unjustifiably seeking to stop others from providing it. If they reject all forms of the insurer-pays solution, I question whether they’ll keep Justice Kennedy, the key fifth man, on their side.”

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