Supreme Court Limits Obamacare’s Contraception Coverage

Let's first be clear about one thing: This case did nothing to the individual mandate. Nor did it challenge the underlying legality of the Affordable Care Act itself. Whatever your opinion of that law, this case could never be the vehicle of its undoing.

The legal question was whether Obamacare's contraceptives requirement violated a law called the Religious Freedom Restoration Act, or RFRA. RFRA, passed in 1993 and signed by President Clinton, was the culmination of a 40 year legal struggle about religious exemptions: if you feel a general law forces you to violate your religious beliefs, can you be exempt from that law?

RFRA gave religious objectors a statutory presumption of exemption: the default would be that persons could demand an exemption if the government's law substantially burdened your ability to exercise your freedom of religion.

But Hobby Lobby gives us something different. RFRA never said that it applied to corporations, but today, the Court, as it did in Citizens United, concluded that Congress wrote RFRA with the standard rule in law that corporations are people, too. Lawyers and law students are familiar with the corporation-as-person fiction. It pops up in first year civil procedure classes. However, privileging corporations as persons for the purposes of freedom of speech and religion was unprecedented and unthinkable before the Roberts Court.

6a00d8341c730253ef01a3fcde7969970b-800wiJustice Ginsburg noted this in her strong dissent:

The reason why "religious exemptions had never been extended to any entity operating in 'the commercial, profit-making world"

is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the work force of for-profit corporations… The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention. One can only wonder why the Court shuts this key difference from sight.

The majority, in a decision written by Justice Alito, found that the Obamacare contraceptive requirement substantially burdened the religious freedom of the owners of Hobby Lobby. Otherwise, the Court argued, it would put families who want to go into business or who own a business already in an impossible situation: either get out of business or violate their interpretation of the word of God.

Never before has someone's particular interpretation of religious scripture been enshrined as law so as to affect so many innocent people.

Justice Ginsburg is right. By giving family-run companies the right to opt out of generally applicable laws, the Court has ignored the fact that it is privileging companies over persons, owners' religious beliefs over employees', the beliefs of those with greater access to capital and investment than those of the working poor. The decision is also illogical: corporations do not enjoy the exact same legal status as individual persons. Even if we limited the decision, as the Court attempts to, to closely-held, family-run corporations that are "extensions" of the owners, there is no logical reason why we should stop there. For-profit public companies are "persons" for the purposes of being hauled into court and being served notice of process. It is not clear to me how the Court majority expects to limit its decision to the Hobby Lobbys of the world when there are many other religious people out there aching to use their religion as a pretext to cut costs, discriminate against women and gays, and maintain a stranglehold on the old order.

010_alito_croppedThe decision will open the federal courts to a flood of challenges by corporations and not just religion-based challenges. The Court basically concluded that closely-held corporations are persons for the purposes of religious exercise, just like all corporations are when it comes to speech. If they are persons, they have all the rights of persons. This decision could be broad depending, as is always the case, on how future appellate and district courts interpret it.

Therein lies the danger for the LGBT community. The Court's conclusion that family-run companies can exempt themselves from generally applicable laws could allow a family-run bakery to humiliate and discriminate against a gay couple looking for a cake for an upcoming marriage. It may allow a for-profit catering hall with no connection to a church to claim that its owners belief in the truth of Leviticus allows them to kick out two lesbians who want to get married there. It may allow companies to fire their employees for being gay even in states that ban such discrimination. It may allow a donut hole to be eaten out from full LGBT equality, consigning us to second-class citizenship in the name of pretextual religious freedom.

Of course, Justice Alito and his conservative colleagues are quick to argue that their decision did not go that far. Hobby Lobby applies only to family-run companies and only in the contraceptives context. But make no mistake: the reach of this decision could be vast. Just like the post-Windsor winning streak has shown the reach of the Supreme Court's decision striking down DOMA, we will only start seeing a small percentage of the effects of Hobby Lobby when the lower courts give us their first interpretations. The real effects may go unseen: they will be in the health care plans dropped, in the increased health care expenses seen by women, in the lack of access to birth control, and, most ominously, in the continued restriction of choices women have when it comes to protecting their bodies and health. The effects may also be seen in an erosion of LGBT equality.


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Ari Ezra Waldman is a professor of law and the Director of the Institute for Information Law and Policy at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. jason MacBride says

    All organized religions are, in their essence, businesses run to make money. La Cosa Nostra was modeled on the Vatican, to give you an idea of how they have historically conducted that business. For those reasons, the views of religious organizations should not be treated differently, in a legal sense, from those of McDonalds or Google or GE.

  2. DenguyFL says

    Considering “private, cloely-held corporations” make up nearly 90% of all corporations, why does the media’s insist on the word “only” when writing about this decision(as you do? Everything is written as if these are a small minority instead of the vast majority of corporations. If you are going to say “only,” you should inform readers that the word is virtually meaningless in this context. Or just don’t use it.

  3. Rick says

    Terrific news! Our fascist Liberal dictator does not get to infringe upon the religious convictions of our fellow Americans. The LGBT left always complains about tolerance but we have so little tolerance for those with moral convictions that don’t mirror the cult of effeminacy that the LGBT community so heavily promotes.

    If you want decent, upstanding members of our society to put up with the Pride parades that are little more than an excuse for libidinous gay men to dance naked and perform simulated sex acts, then we must tolerate and accept the religious convictions of the straight community.

  4. says

    First of all, while losing your ability to force a private company to hire an LGBT, or to do business with an LGBT is annoying, and may even cause mild hardship in extreme cases, it should never be called “Dangerous”. That is hyperbole.

    Second of all, I’d like to point out something that IS “dangerous” – and that is attacking Amendments in the Bill of Rights. That is a REAL serious danger to your right to life, liberty and pursuit of happiness. This article is relentless in its attack on the right to freedom of religion. Make no mistake – you alter freedom of religion and the rest of the 1st amendment will follow eventually. Its time to get your priorities straight.

  5. Jude says

    Kerry, Little Kiwi is right. It is freedom FROM religion. Think back to the early European settlers. Think hard.

    Jesus didn’t form a business. In fact, Jesus would encourage you to donate all your belongings to others. How’s that going? Here’s a win-win: How about donate some of your condoms?

  6. anon says

    I have no idea how this ruling will be enforced. How does a company apply for an exemption? What if there are no health care plans that don’t have contraception coverage in a particular state? It looks like a ruling with no teeth whatsoever.

    The ruling changed little from the point of view of the employee. Contraception coverage was new to the ACA and was rare prior to that. It was a compromise between Pelosi and hardlined feminists that wanted free “abortion on demand” coverage. The latter would have never passed the House. Under the new law, small businesses could have dropped coverage entirely, forcing their employees to get individual policies.

    Corporation are “persons” under the law and always have been. To “incorporate” is Latin for “Put into a body” or “To make corporeal”. It’s the only way corporations can own assets or sign contracts. They have first amendment protections as well. There is also no distinction under the law, ignoring the tax code for a moment, between for profit and non-profit corporations. You might think that a church and Walmart are two entirely different things, but legally they are not. You could have a for profit church, though there’s little incentive for churches to do that.

    Where cases might get a bit hairy, but this is never considered, are with “Trusts”. They don’t have the same legal standing as corporations yet there are several hundred politically active trusts in the US. Their first amendment status has never been tested. Also, labor unions are in a gray area legally as well. They are not corporations, but the Supreme Court has given them first amendment rights too. This means that all the arguments that apply to employers lording it over their employees and not respecting the views of their employees also applies to labor unions.

  7. Derrick from Philly says

    @ “If you want decent, upstanding members of our society to put up with the Pride parades that are little more than an excuse for libidinous gay men to dance naked and perform simulated sex acts, then we must tolerate and accept the religious convictions of the straight community”

    Who invited those straight motha’ f.ckas to the Village for Pride Weekend?

    Well, I guess Rick’s medication doesn’t work well the after the last Sunday in June. Too much GAY for him.

  8. crispy says

    The fact that Rick can go from arguing in one thread about Tim Cook and Apple employees marching in a gay pride parade to describing such parades as “libidinous gay men to dance naked and perform simulated sex acts” is the pinnacle of trolling. And truly reveals what a self-hating, loathsome creature Rick is.

  9. Rick says


    just because some gays are faking a family-friendly atmosphere doesn’t mean the nature of the “beast” has changed. Let’s not kid ourselves: gay culture is a cesspool of debauchery and flagrant disregard for common sexual decency masqueraded as “freedom” and “bravery.” Roided gym bunnies in speeds on a corporate-owned float dancing to the trite pop music of shallow female pop singers is not and never will be acceptable, nor should it be. We should be striving for a more normalized existence. Its the only way the LGB community can thrive.

  10. Rick says

    Emjayay, some of us are trying to enact change. You should try it. It’s a much more satisfying life to not tow the party line and stand up for the Masculine ideal that used to mean something.

  11. Zlick says

    I’m surprised Ari raises the canard of this applying to gay marriage issues. The Hobby Lobby decision is based on the religious liberties of a law, the Religious Freedom Restoration Act; not the U.S. Constitution.

    Gay marriage bans are being overturned on constitutional grounds. The Hobby Lobby decision does not grant any company or person religious liberty exemption from constitutional requirements, merely from laws. Dangerous as that may be for the rule of law, it is not a licence to discriminate on the basis of objection to same sex marriage.

  12. Artie_in_Lauderdale says

    Hey, Rick. No matter how much unintentional comedy you post, your trailer trash relatives in the Deep South still won’t invite you over for holidays. Too bad you identified with your oppressors: the stupid relatives who gave you such a bad time when you were growing up because, in their opinion, you were “gender non-conforming.” Any video you post will show other commenters how gender non-conforming you are, which is why you never post videos of yourself on the Internet. Ask your trashy Southern Baptist relatives to check out aluminum brightening products for the aluminum siding on their trailer homes.

  13. JackFknTwist says

    I hope I’ve got this right :

    Corporations/owners can negate their employees rights to equal insurance cover because those corporations/owners have particular beliefs.

    If that is correct, I’m horrified.
    It means that private whackey bigotry gets free rein to deny equality on the basis of unscientific notions of the paranormal/supernormal/abnormal.

  14. JackFknTwist says

    And Ari’s absolutely right:
    Alito will be the biggest obstacle to all progress in social issues for the next generation.
    He’s like a stealth Opus Dei implant.

  15. Artie_in_Lauderdale says

    By the way, Rick, what exactly does a religious exemption for birth control coverage in health plans (which mainly affects straight people) have to do with gay people or effeminacy? How do you segue from one issue to another like that? Are you just obsessed with admiration for religious nutcases like your stupid relatives? Have they punched you in the face lately? Give them a month or two.

  16. Frank says

    As usual, Ari’s analysis is full of holes. To take one example, he fails to discuss the fact that RFRA, a federal statute, is inapplicable to state and local governments. It originally was intended to apply to the states, but that part of it was struck down many years ago.

    Anti-discrimination laws covering LGBs are found at the state/local level. So the issue then becomes the state versions of RFRA. Some states have a version of RFRA on their books and others don’t. Ari says nothing about this.

    As to those states which do have a version of RFRA, there should be a serious push to clarify that those state laws do not extend to corporate entities or alternatively, that they are not intended to limit enforcement of anti-discrimination laws. In blue states, this should be possible to do. In red states, not so much.

    Thanks for sub-par writing as usual Ari! The one thing you excel at is shilling for anti-gay bully Dharun Ravi!

  17. Artie_in_Lauderdale says

    You might live in New York or thereabouts now, but tell us, Rick. Which sorry-ass little corner of Georgia did you slip out of ?

  18. walter says

    it is time to end the idea of jobs for life . the supreme court needs to have a code of conduct forced on it because it has lost the idea of separation of church and state and people’s personal freedoms . the roberts court is nothing more than a tool of 3the right wing fanatics

  19. Polyboy says

    Rick is the gestapo, never for a second believe that he actually cares about anyone but an imaginary ideal that he does even embody in himself.

  20. Derrick from Philly says

    @ “You might live in New York or thereabouts now, but tell us, Rick. Which sorry-ass little corner of Georgia did you slip out of ?”

    Based on Rick’s past comments I believe he is from Mississippi not Georgia. And there is absolutely nothing wrong with being from the Deep South (my family is).

    Rick’s problem is not from his being from the Deep South. No, his problem is that he won’t take his medication regularly. And every Monday after Gay Pride Sunday in New York City he is an emotional basket case. He made simalar rants last year. There’s not even the hint of calmness or control.

    He writes fairly well but he’s a pure loon.

  21. Artie_in_Lauderdale says

    Derrick from Philly,

    There are plenty of progressive people down South, as you can see by the growing acceptance of equality in Southern states. Unfortunately, Rick did not grow up as one of those progressive people. I’m sure he has lots of mommy and daddy issues, which is why I ask him questions in that regard. Rather than ranting about finding wire hangers in his closet when he was a child, his parents no doubt ranted about finding clothes that they felt were too “sissy” in his closet. Too bad Rick identified with his oppressors.

    “Nooooo wire hangers!”

  22. Randy says

    “get out of business or violate their interpretation of the word of God.”

    I have no problem with this rule. It should be the law of the land.

  23. petey says

    Contraception was invented to create a Shangri La for straight guys by removing the consequences of promiscuous sex with women. It’s not medicine.

  24. simon says

    Get yourself some education. It is called preventive care. The insurance companies actually are happy to pay for it since it will reduce the number of unwanted pregnancy and avoid the amount they have to pay for hospital stays. By the way, it also applies to contraception within a marriage unless you object to a man having too much sex with his wife.

  25. JJ says

    Why would we protect anyone’s exercise of religion that affects other people? No one deserves that kind of protection until they PROVE that their beliefs are true.

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