Closely Held Companies Can Refuse To Cover Contraception, Supreme Court Says

MAUREEN CAVANAUGH: This is KPBS Midday Edition, I am Maureen Cavanaugh. Supreme Court watchers say that the Hobby Lobby ruling today is very narrow in scope, only affecting small closely held corporations, and only affecting coverage of specific methods of birth control. On the other hand, this is the first time that the court has extended First Amendment religious protections for a for-profit corporation, significantly advancing the concept of corporations as persons. It also singles out contraceptive medical care, as distinct from other forms of covered health services. I would like to welcome my guests, Glenn Smith, Professor of Constitutional Law California Western School of Law. Good to see you again. GLENN SMITH: I agree, thanks. Good to see you. MAUREEN CAVANAUGH: And Professor Susan Channick is Co-Director of California Western School of Law's Institute for Health Law Studies. Susan, welcome. SUSAN CHANNICK: Thank you Maureen, nice to be here. MAUREEN CAVANAUGH: Hobby Lobby, Glenn, is now one of the typical 5 to 4 decisions of this court. Considering the questions asked by justices during the oral arguments, was this ruling expected? GLENN SMITH: I think it was. I think it was expected for the majority to uphold for the first time, as you said, the rights for for-profit organizations to claim religious freedom rights under a very important federal statute. I think the thing that I did not expect, and was sort of hopeful if you are worried about the long-run implications or even the short run complications, Justice Kennedy wrote a concurring opinion, where he tried to say this is a narrow case, only here because the federal government has a pre-existing accommodation or alternative to deal with the religious freedom claim here. Are we willing to go there, and do not read too much into this case. We will see whether it turns out to be that way or not. MAUREEN CAVANAUGH: Can you give us that breakdown? Who voted in the majority, and who was in the minority? GLENN SMITH: The opinion was written by Chief Justice Alito, he was joined by Chief Justice Roberts, Scolia, Thomas, and Kennedy. Kennedy joined the main opinion, but then wrote a separate typical Justice Kennedy in the middle don't overdo the majority opinion position. The forward justices, typically referred to as more liberal dissented, although Brian and Kagan did not decide or find it necessary to decide the question of whether for-profit corporations have rights under the statute. They said even if they did, the government had a right and a stronger interest in requiring participation in a program here, so we do not need to address the issue. It was in the face of it 5-4, but we had some nuances that may give some hope to people concerned as I am about the reach of this ruling, ultimately, to think it is not as dramatic a departure as people may have thought. MAUREEN CAVANAUGH: Hobby Lobby is a family owned corporation with Christian values as part of its mission statement. The company objected to a government mandate that they offer their employees insurance coverage for certain forms of birth control. Glenn, why does the Supreme Court say that they had that right? GLENN SMITH: It is important to keep in mind that they do not have, in fact no one would have rights under the Constitution. But Congress passed a statute called the religious freedom restoration act, which says that any person whose religious beliefs are substantially affected by a federal law, can get a federal government to defend it at a pretty high level. The question is what is a person under the statute? Justice Alito says that in general, corporations are persons for federal law, Congress had a broad remedial purpose here to strongly protect religious freedom. There is no principled way to distinguish them out of the mix. They said that the statute applies, they are persons, they are substantially burden here, and the government had less restrictive ways to accomplish birth control preventative law purposes, without substantially burdening religious rights of these corporate owners. MAUREEN CAVANAUGH: If the law had been written with the words human instead of person, it might have been a different result? GLENN SMITH: You never know with these words, but certainly if it said individual or individual and church, which is what I think Congress had in mind. The statute passed virtually unanimously with no controversy, suggesting that and I think Justice Ginsburg makes this point in dissent, Congress probably had in mind individuals with strong religious beliefs and if the kind of corporation that would exercise of religious belief would be a nonprofit church, the idea that 17,000 employees in a 700 store company for-profit could have the same kind of religious belief as an individual or a church, I think that is not what Congress had in mind. That is why I think this case is wrong. MAUREEN CAVANAUGH: Professor Susan Channick, there are, as Glenn points out, a number of Hobby Lobby stores across Southern California. What does this ruling mean for employees of Hobby Lobby? SUSAN CHANNICK: Well, this really goes to the kind of accommodation that the court talked about, that is if the corporation does not have to provide for contraceptive coverage, who is going to do it? The government has already encountered that problem with nonprofits. The government came up with regulations and accommodation that would allow nonprofits to essentially transfer the burden of providing and paying for contraceptive coverage to insurers. I think that is the already into existence not to burden some accommodation that both the majority and incurring opinion was talking about. I don't think it is all that clear that this accommodation is really in place in a way that makes the government not so burdened by having to take on the responsibility of then paying for, and providing contraceptive coverage, of employees that get these exemptions. MAUREEN CAVANAUGH: Another point that has been widely talked about, speculation of out how this corporate religious exemption could be used to ask for exemptions on other types of healthcare coverage, like vaccinations and blood transfusions. What did the justices in the majority say about that? SUSAN CHANNICK: They were clear to say that this opinion applied only to contraception. It did not apply to other kinds of coverage that companies might have religious objections to contraceptives. Specifically they talked about vaccination. But, they did not say that somebody could not bring a lawsuit to challenge on those grounds. It is not foreclose the possibility of a challenge on other grounds, not contraception mandate, the other mandated care that employers are supposed to cover. MAUREEN CAVANAUGH: Doesn't this put women's reproductive health care in a separate category now? SUSAN CHANNICK: It does put women's reproductive health care in a separate category, but I suppose it could be joined by another kind of healthcare if companies start to bring challenges that are beyond the contraceptive mandate that was just struck down today. MAUREEN CAVANAUGH: In this written opinion, obviously the justices see this kind of reproductive health care as different from vaccinations. And less compelling than a blood transfusion. GLENN SMITH: They obviously see it, Justice Alito ends at the fact that maybe it would be seen that the government has a more compelling interests. Part of what worked against the government, as Susan points out, that they are already willing to make exceptions for providing some kind of contraceptive coverage, and preventative women's health coverage, treated differently. Since the government already started us off by treating it differently, it then became harder for the government to come back and argue no, and we cannot come back and make any exceptions. Because the government had made them. I agree with you, that it was treated differently, but I would say that probably this different treatment was started by the government and its regulatory agencies. MAUREEN CAVANAUGH: As Susan pointed out, there are exceptions for nonprofit religious organizations who oppose birth control to opt out of offering that coverage. What is the significance that this is a for profit corporation? GLENN SMITH: There is no significance now, after this decision. What the court essentially did was say that because the government could give the same accommodation it gives two nonprofit religious organizations to for-profit ones organized around religious grounds. But as Susan points out, and Justice Ginsburg points out in dissent, this accommodation itself is subject to a number of court challenges, several circuit courts have said it is unconstitutional, including the DC circuit. Essentially the court majority could be accused of a shell game saying that you could do this, but maybe in the next case we can say nobody can do that. It is a very interesting and troublesome situation, from both a women's health standpoint, and the overall question of where does this end? How, as you say, not only in the area of immunizations and other healthcare practices, but what about claims that my corporation doesn't want to hire these kind of people, or does not want to serve these kinds of people? The court tried to close the door on those, but we shall see. MAUREEN CAVANAUGH: Is it part of Justice Ginsburg's dissent that that she does not think that the door has closed on these potential uses of this decision? GLENN SMITH: I think that is right, she called this a breathtakingly broad opinion. Reasonable minds can differ about whether this opinion itself did that come but what I would say is that it certainly opened a door that had been close before. How far the door swings open and how many people can crowd through it before it shuts is a question that we will all have to wait and see what happens. MAUREEN CAVANAUGH: Hobby Lobby objected to specific forms of contraception because of a decision that what the court found to be their sincere, but scientifically mistaken belief that these forms of contraception are forms of abortion. How much do you think the controversy over abortion factored into this ruling? SUSAN CHANNICK: That is a very interesting question, I guess it goes to how broad this is. Hobby Lobby was a great plaintiff, because they were willing to cover a lot of birth control, but not those forms of birth control that they believed to be abortifacients. It is interesting when you read a scholarship about this particular issue, there is not certainty in this, unless you are reading that is scientific, in legal scholarship there is really this sort of absoluteness about whether these are abortifacients or not. They prevent conception, in the way that all contraception does, but they are somewhat different from other kinds of contraception. I am not sure that this was so much an abortion question. But certainly the fact that Hobby Lobby was objecting to the four contraceptives that are arguably abortifacients, it made a difference. GLENN SMITH: By the way, Justice Ginsburg points out that one of these is the IUD, a frequently used and highly effective form of birth control. It does have the potential for practical applications, we're not talking about obscure methods. MAUREEN CAVANAUGH: I have to ask you one last question about the Supreme Court decision today to not take over the Mt. Soledad Cross issue, because the Ninth Circuit Court of Appeals has not ruled on it yet. Hasn't this question already been litigated? GLENN SMITH: Oh, has this question been litigated. But the normal method is you go through the pecking order, and the district judge decision in the fall that the cross had to come down would of course go to the Ninth Circuit. What the cross proponents were arguing, look where everybody stands on this, let us just go to the Supreme Court and get a result. As Justice Alito pointed out in agreeing, he is the critical justice in this ultimate question, there is a very strong burden that has to be shown, and the court did not see any reason to disturb the status quo, since that includes that the cross stays until the Supreme Court ultimately chooses how to reach it. MAUREEN CAVANAUGH: Is there any reason to suspect that if and when it does go down to the Supreme Court, that this will be the last word on whether the cross gets to stay or go? GLENN SMITH: I am a little suspicious, I want to say never say never on the cross. But in theory, when the Supreme Court ultimately reaches on the merits whether the US Constitution forbids the cross or not, their decision ought to be final on the question. Twenty years later we ought to have some ultimate resolution on the status of the cross. MAUREEN CAVANAUGH: Thank you both very much.