Any time the Supreme Court presents us with a major decision, it is tempting to ask what exactly the implications will be. But beyond the imminent effects of the holding, we cannot know until the Court begins citing its opinion down the road. We are left to divine possible futures from the murky crucible of the justices’ words.
Since the Court released its opinion in Burwell v. Hobby Lobby, in which the majority decided that closely held for-profit corporations may claim a religious exemption from the Affordable Care Act’s contraception mandate, that process of divination has been unceasing. The yield—will scientologist bosses be exempt from covering mental health care? will President Obama’s executive order preventing discrimination against gays and lesbians in federal hiring be scuttled?—has been disturbing or welcome, penetrating or overwrought, depending on where one stands on the questions of religious freedom at stake.
Amid all the talk, though, little heed has been paid to one of the Court’s more transparent foreshadowings: eventually religious objectors may be freed from contraception mandates entirely because providing “free” access to contraceptives—that is, access without a co-pay—is not necessarily a compelling government interest.
Under the Religious Freedom Restoration Act (RFRA), the government may only burden religious freedom if it does so in order to satisfy a compelling interest. Many observers who favor contraceptive access have taken solace from the Court’s apparent acknowledgement in Hobby Lobby that enabling such access is indeed a compelling government interest and hence must be assured by some means—if not by the employer claiming exemption, then by the insurer it has contracted with to provide employees health care coverage.
But this is a misreading of the opinion. The majority does not seem to think this interest all that compelling. It just refused to settle the issue because it preferred to side with Hobby Lobby on other grounds.
“We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA,” the opinion states. But this stipulation doesn’t imply anything like agreement, only a desire to move on.
In fact, throughout its brief discussion of RFRA’s compelling interest clause, the majority is skeptical of the very thing it assumes. The Department of Health and Human Services “asserts that the contraceptive mandate serves a variety of important interests,” Justice Alito writes for the Court, “but many of these are couched in very broad terms, such as promoting ‘public health’ and ‘gender equality.’” RFRA, the majority believes, cannot abide such generalities.
The majority also believes that the Affordable Care Act itself militates against the idea that access to contraceptives without cost-sharing is a compelling government interest. After all, they say, the ACA provides numerous exceptions to the mandate. Organizations that employ fewer than fifty people need not comply. Employers with grandfathered plans can also ignore the mandate. One might argue that small businesses face unique challenges that ought to override otherwise-compelling interests, but the majority stakes its position when it notes, “The interest served by one of the biggest exceptions, the exception for grandfathered plans, is simply the interest of employers in avoiding the inconvenience of amending an existing plan.” That is, if inconvenience is sufficient cause to secure an exemption, how compelling can the interest truly be? These grandfathered employers are not excused from every ACA requirement, which may suggest that other elements of the law are vital, while the contraception coverage mandate is a bonus. In the mind of a judge looking for a reason to undo the mandate, this might further weaken the case for a compelling interest.
These statements from the Court are an invitation to future lawsuits. Lawyers concerned with an expansive definition and application of religious liberty will be tempted to recruit plaintiffs—just as they have recruited Hobby Lobby and others—to file suits implicating the government’s case for a compelling interest in mandated cost-free access to all contraceptives, not just the four to which Hobby Lobby objected.
So while the majority has left the government’s compelling interest argument intact for now, we should not conclude it is unassailable or likely to survive much longer. The Court has in essence provided instructions for striking it down. Should that occur, religious employers—a category this Court is determined to construe broadly—would be freed in advance from any form of contraceptive coverage mandate, no matter how such a mandate might be fashioned. And, more generally, the rationale underlying a government push for contraceptive access would be dealt a serious blow.