Robin Fretwell Wilson is the Roger and Stephany Joslin Professor of Law and director of the Program in Family Law and Policy at the University of Illinois College of Law. She spoke with News Bureau business and law editor Phil Ciciora about the U.S. Supreme Court's ruling in Burwell v. Hobby Lobby, a 5-4 decision that allows some businesses to cite religious beliefs as a way to exclude contraceptives from their insurance plans.
What's the big takeaway from the decision?
Surprisingly, the big takeaway is that everyone wins. The court is saying the government has a way to address a compelling interest, which is the need for women to have access to contraceptive coverage. Essentially, all the government needs to do is extend to the employees of closely held corporations that have religious objections the very same accommodation that they already extend to religious nonprofits, like the University of Notre Dame.
If you just look at the number of employees who are supposed to be impacted – that is, the estimated number of employees working for the religious objectors that filed suit – the number of nonprofit employees who could have been affected by religious objections swamped the number of for-profit employees. Yet the government only wanted to call foul on the for-profit employers.
So the court latches onto the regulatory fix by the Obama administration, which itself is a way for everybody to win. In other words, to respect religious beliefs without disproportionately affecting a women's access to needed medical services. That, to me, is the nirvana point, and it's basically where the court comes down.
It also establishes the principle that individuals doing business as closely held corporations don't leave their religious convictions at the door. It's a narrow decision in the sense that the court is only talking about this one service that someone may have a religious objection to under the Affordable Care Act - namely, these drugs that the plaintiffs believe are abortive agents. But we're not talking about, say, a religious objection to a blood transfusion, which is something a Jehovah's Witness might object to. That distinction raises a profound point: You have a number of people who have a deep-seated conviction about a drug, but I have yet to hear of anyone filing suit over a deep-seated conviction over not providing a blood transfusion. So I applaud the court for saying, essentially, "Here's the real issue in front of us. We're not going to decide any ancillary issues."
In other contexts, we do give religious accommodations - and the court talks about this - both to religious nonprofits and to religious for-profits. For example, the "church amendment," which was the very first health care conscience clause that dealt with abortion, makes clear that any institution that receives money from the federal government can object to providing abortions. So to try and carve out some rule that would only give statutory accommodation to religious nonprofits, but not to for-profits, is not consonant with this history.
Really, the outcome for the government came about because they made so many concessions to religious nonprofits. That's an aspect that got lost in all the media attention in the run-up to this litigation and in the final decision. I actually think the court skips past the Obama administration's claim about accommodating for-profits being a bridge too far by saying, "Look, you made all these concessions to nonprofits, so you can't really say that the for-profit corporation is not a person under the Religious Freedom Restoration Act but the nonprofit corporation is." Neither can the administration say there is no other way to meet this important access concern without forcing religious objectors to heel.
And the Obama administration ought to be credited for doing as much as they did for religious nonprofits. But this decision stands because they can do the same thing for for-profit corporations, and everybody wins.
What repercussions do you foresee emanating from this ruling?
I attended a law and religion conference this week, and I think one of the things that the group believed might follow would be an effort to scale back the federal Religious Freedom Restoration Act. I really don't know if that is likely to happen, but I think it could happen, and it would be very unfortunate if that were one of the outcomes of the Hobby Lobby case.
To my mind, we can respect religious freedom while not adversely affecting women by extending an accommodation that the government concedes is basically cost-neutral to the insurers. Putting aside any cultural war issues around the Affordable Care Act, the Religious Freedom Restoration Act has generally been about cases that are far removed from the culture wars. Take the example of a local municipality saying to a cemetery that they can't have crosses on a gravestone. That has nothing to with the culture wars, but everything to do with religion being encroached upon by government without really considering whether there's a less obtrusive alternate solution.
Could the decision ultimately lead to more legalized discrimination laws similar to Arizona's attempt to allow businesses to refuse to serve LGBT people on religious grounds?
I think the answer is absolutely not. A common misunderstanding is that the fight over Arizona's Religious Freedom Restoration Act was about legalizing discrimination. What happened in Arizona is somewhat a function of the fact that Arizona has yet to provide important legal protections to gay, lesbian, bisexual and transgender individuals. That is, a promise of no discrimination on the basis of sexual orientation in places of public accommodation, housing and hiring. Some religious groups argued for amending the state law to solve what's really almost an academic question: Could a business claim protection under the state RFRA? These groups backed the amendment as need to "stave off gay rights." Claiming protection and winning on the merits are two different things. More fundamentally, though, there were no gay rights to stave off in Arizona - that was where the core problem lies, not with the RFRA per se.
So the religious groups that asked for protection to hurt the LGBT community were wrongheaded. It's wrong not to extend those protections, and that was the fundamental gap in Arizona law that needed to be fixed.
What should have happened in Arizona is what essentially happened under the contraceptive coverage mandate: reaching that balance point where we both respect religious freedom and also provide needed access. Under the mandate, that means women receive access to needed contraceptives, and in Arizona, lesbians and gays enjoy the same access to commercial businesses that the rest of us enjoy. That's what needs to be done in a civil society, as the court said so convincingly in its opinion.