— Sarah Baker (@bakerbk) June 30, 2014
Our early roundup of blog commentary is here. My initial take on the ruling is here. Your thoughts are here and here – and we’re compiling many more. From the next wave of blog commentary, Amy Davidson seizes on several quotes from Ginsburg’s dissent and anguishes over the majority decision:
Alito sees all the substance in how put-upon the owners of corporations feel. In oral arguments, Kennedy openly worried that companies would somehow be mixed up with abortion, and one suspects that his sense that abortion is a distinctly volatile, morally charged subject was part of why he acquiesced here, and why seems to believe, against all reason, that this decision is narrow. Women’s health is treated as something troublesome—less like other kinds of health care, which a company should be asked to pay for, than as a burden for those who have to contemplate it.
Soraya Chemaly is on the same page:
Ninety-nine percent of sexually active women will use birth control at some point in their lives. The Court’s decision displays the profound depth of patriarchal norms that deny women autonomy and the right to control our own reproduction—norms that privilege people’s “religious consciences” over women’s choices about our own bodies, the welfare of our families, our financial security and our equal right to freedom from the imposition of our employers’ religious beliefs. … This religious qualifier was narrowly construed to address just this belief and not others, such as prohibitions on vaccines or transfusions. It is not a coincidence that all three female members of the Court and only one man of six dissented from this opinion.
Drum is also bummed:
This is not a ruling that upholds religious liberty. It is a ruling that specifically enshrines opposition to abortion as the most important religious liberty in America.
But McArdle doesn’t buy such sweeping statements:
Here’s a representative tweet from my feed this morning: “So let’s all deny women birth control & get closer to harass them when they’re going in for repro health services. BECAUSE FREEDOM.” Logically, this is incoherent, unless you actually believe that it is impossible to buy birth control without a side payment from your employer. (If you are under this tragic misimpression, then be of good cheer! Generic birth control pills are available from the drugstore for about $25 a month.) Otherwise, according to the reasoning of that tweet, I am being denied something every time my employer refuses to buy it for me: cars, homes, Hummel collectible figurines. …
Now, there are women out there for whom a few dollars a month is a crippling expense, but I venture to say that few of them are salaried workers getting health insurance from closely held corporations with deeply religious owners; most of them will be hourly workers on Medicaid.
Suderman counters critics of the court’s view that “corporations are people”:
The key to Alito’s ruling arguably comes down to just two words: “a person’s.” The big question isn’t whether the contraception mandate violates the religious freedoms of some faceless corporate entity entirely separate from the individuals who own that company—it’s whether the requirement would violate the free exercise of religious for the particular people who founded and now run the company. As Alito writes in his opinion, “A corporation is simply a form of organization used by human beings to achieve desired ends….When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people.”
Ilya Somin adds on that score:
Even the dissent by Justice Ruth Bader Ginsburg partially recognizes this, since she accepts that [the Religious Freedom Restoration Act] does apply to nonprofit religious corporations, such as those established by churches. The latter, of course, are no more natural “persons” than for-profit corporations are. In modern society, people routinely use corporations for a wide range of activities. Numerous employers, churches, schools, newspapers, charities, and other organizations use the corporate form. When they do so, their owners and employees should not have to automatically check their constitutional and statutory rights at the door.
Meanwhile, Aaron Blake notes something I mentioned last night: the court’s metric of “closely held” – defined by the IRS as companies in which five or fewer individuals own more than half the stock – affects about 90 percent of all businesses and about 50 percent of all employees. Blake then asks:
But does that mean the employers of half of all Americans will suddenly nix contraception coverage?
Of course not. According to a Kaiser Family Foundation poll, 85 percent of large employers had already offered contraception coverage before Obamacare mandated it. And while Hobby Lobby fought that mandate, so far few other large companies have joined them. … [T]here is little reason to believe that tens of millions of American women will suddenly see their contraception coverage come to an end.
And for those who do lose their coverage, Danny Vinik reminds us that “employees of closely held corporations may receive contraceptive coverage anyway”:
That coverage would likely mimic the workaround developed in 2012 by the Department of Health and Humans Services. That regulation exempted nonprofit religious institutions like hospitals and charities (churches were already exempt) from adhering to the contraceptive mandate. However, it required insurance companies to offer contraceptive coverage free of charge to those employees. This workaround, the Obama administration argued, ensured that religious institutions were not directly participating in offering contraception to their employees.
In fact, Alito essentially recommends that workaround in his ruling. Cohn takes that one step further to argue that “the obvious solution to this dilemma is to take health insurance away from employers altogether” and give it to “the government or tightly regulated insurers”:
But the people and groups who oppose government’s providing insurance directly tend to be the same people who object to the contraception mandate. That’s not a coincidence. While I don’t doubt the religious objections to birth control are sincere, I do think they are masking another belief conservatives bring to this debate: As a general rule, conservatives don’t think government should be compelling them to pay for other people’s medical expenses.
As Beutler puts it, “Ironically, and appropriately, the ruling probably prefigures a call for a greater, not smaller, government role in the health care system.” Still, any such workarounds probably won’t satisfy companies like Hobby Lobby:
To take advantage of the exemption, a closely held company owned by religiously devout individuals must file a form, specified by the government, in order to trigger the legal duty of the “middle man” to provide the coverage as a stand-in for the company or its owners. Federal government lawyers have made it clear in court, over and over again, that the “middle man” will not have any authority to step in unless the company or its owners file that government form claiming an exemption for the mandate. Some whose religions tell them to have nothing to do with some forms of birth control (often on the premise that they amount to a form of abortion) believe that even the filing of that formal declaration is itself an act of participation in the provision of those very services for people on their payroll.
And that argument is winding its way through the courts:
At least 51 nonprofit lawsuits have been filed against the administration’s policy by groups that say the accommodation still forces them to violate their religious beliefs since they have to arrange for the contraception coverage. Some of those challenges have reached the appellate court level, and just this past New Year’s Eve, Justice Sonia Sotomayor temporarily blocked the administration from enforcing the requirement against the Little Sisters of the Poor, a group of Colorado nuns.
As SCOTUSblog pointed out over the weekend, two more religious-affiliated groups on Friday asked for a similar protection from the contraception rule. “It is now nearly a certainty” that the Supreme Court will take up the nonprofit challenges to the contraception requirement next term, according to SCOTUSblog.