follow-up on Hobby Lobby: logical consequences

Following its decision in the Hobby Lobby case, the Supreme Court vacated some recent lower court decisions and remanded them for reconsideration in light of the new precedent. From Mother Jones:

Justice Samuel Alito, who wrote the the 5-4 opinion, used numerous qualifiers in an attempt to limit its scope, but a series of orders released by the court Tuesday contradict any narrow interpretation of the ruling.

The court vacated two decisions by the US Court of Appeals for the Sixth Circuit—Autocam Corp. v. Burwell and Eden Foods v. Burwell—and commanded the appeals court to rehear the cases in light of the Hobby Lobby decision. In both instances the Sixth Circuit had rejected requests from Catholic-owned businesses that sought to exempt the companies from offering insurance that covered any of the 20 mandated forms of birth control. The Supreme Court also compelled the US Court of Appeals for the District of Columbia to reopen a similar case, Gilardi v. Department of Health & Human Services.

(h/t Gin and Tacos)

It’s not uncommon for the Court, after creating new rules of law, to send similar cases back to the lower cases for rehearing. That makes sense—you want all the live appeals on a given point to be determined according to current law, but once the Court has stated the law, there’s no reason for it to hear all those cases itself. That’s what lower appellate courts are for.

Remand is not necessarily an order to find for a particular party. It can often be an opportunity for the lower courts to develop the new point of law in more depth—which can mean that it finds some wrinkle that makes the remanded case different from the case the Supreme Court decided. That can happen.

Here, though, it’s not immediately clear to me what could possibly distinguish these cases from Hobby Lobby. I’m assuming Autocam and Eden Foods are closely-held corporations, and that their owners will be able to demonstrate that they have a sincere belief that providing others with birth control is a sin. Of course, these companies are not claiming that all 20 forms of birth control that must be covered under the ACA are “abortifacients.” But what difference should that make? Per Hobby Lobby, it is not for the courts to decide the comparative gravity or reasonableness of the prohibitions of various religions. If there’s a sincere belief, and it’s substantially burdened, RFRA is triggered, and the burden shifts to the government to show that there is a compelling interest in the insurance mandate and that the ACA’s scheme is the least restrictive means of accomplishing that interest.

You can imagine that the government will argue there’s an even more compelling interest here than there was in Hobby Lobby, since presumably there’s a greater health interest in getting patients at least some form of birth control than there is in providing them with any particular form.* But if the ACA wasn’t narrowly-tailored in Hobby Lobby, it won’t be narrowly-tailored in these cases either, since the legal mechanism is identical.

The language of the majority opinion in Hobby Lobby makes this result likely:

[O]ur 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 the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.

In other words, in cases not having to do with the contraceptive mandate, there might be different arguments about the government’s compelling interest and narrow tailoring. But in cases that are about contraception, there probably aren’t.

So it seems likely that Eden Foods and Autocam (and any other company that wants to) will be able to claim a religious exemption from providing coverage for contraception.

*Of course, for some patients, this is not true at all. Some forms of contraception have specific, non-birth-control-related medical uses that can’t be reproduced by other forms. So, for example, the hormonal IUD

can treat a variety of gynecological disorders, including menorrhagia and anemia. The levonorgestrel system has also been used successfully as part of hormone replacement therapy, as adjuvant therapy with tamoxifen, and as an alternative to hysterectomy for women with bleeding problems.

In other words, the various forms of birth control are not always fungible.

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