Roosevelt Institute | Cornell University

Hobby Lobby and Contraception: Is it the Boss's Business?

By Angelica CulloPublished April 25, 2014

Hobby Lobby President Steve Green says the arts and crafts company should not have to provide its 13,000 employees with coverage for Intra-Uterine Devices (IUDs) and morning-after pills under the Affordable Care Act (ACA). Should a for-profit company have a say in how its employees choose to use their healthcare benefits? \r\n\r\n

By Angelica Cullo, 04/25/2014

This case raises several key questions: (1) Under the Religious Freedom and Restoration Act (RFRA), does a for-profit company qualify as a "person"? (2) How, if at all, does the emergency contraception mandate of the ACA impose a "substantial burden" on the ability of an individual (in this case the Green family) to exercise their own religious freedoms? (3) Could denial of benefits be seen as an act of religious discrimination? and (4) Could exemption from the contraception mandate be considered gender discrimination?

To date, the Supreme Court has not found any for-profit corporation to be an entity capable of expressing religious beliefs, while religious non-profits have been granted exemption from providing basic preventative care (which includes all 20 contraceptive methods approved by the FDA). Whether or not for-profit corporations should be able to exercise religious beliefs is often a point of contention, but many, including Justice Sonia Sotomayor stand by their argument that corporations should not be able to exercise those rights. How does a for-profit corporation exercise religion? Whose exercise of religion is it? The shareholders? The corporate officers? And what about employers who have religious objections to other medical procedures -- blood transfusions, immunizations, or medical products that contain pork? Take for instance, laws relevant to sexual discrimination, same-sex couples, child labor, racial equality in the workplace, or the social security tax. If religious beliefs were grounds for a corporation not to comply with such generally applied federal laws, there would be so many exemptions that some Federal laws would be essentially obsolete.

Even if a corporation does qualify as a person, and the RFRA indeed applies, in this case it is still difficult to see how the ACA's contraception mandate would be considered a "substantial burden" on the free exercise of religion. Hobby Lobby argues that providing contraception coverage would be a burden because failure to comply results in a yearly $26 million fine in order to opt out of ACA insurance coverage altogether. This fine, however, is much less than the cost of insurance itself, and besides, Hobby Lobby chose to pay for the insurance, and in doing so they were aware of the medical products and services that the ACA mandates included.

Does Hobby Lobby's denial of certain benefits could be seen as an act of religious discrimination? Hobby Lobby's owners claim that their religious views shape their business model and even their mission statement, and thus denial of benefits that don't align with that mission are acceptable. Despite this claim, denying benefits could still be considered a violation of Title VII of the Civil Rights Act of 1964 which "prohibits employment discrimination based on race, color, religion, sex and national origin."

The Hobby Lobby case raises another important question regarding gender equality under the law. For an employer to cover all basic needs for men, but to pick and choose those it feels women should have becomes an issue of gender discrimination. Studies have shown emergency contraceptives to be up to 75% effective in preventing unwanted pregnancies when used within 72 hours, with the most effective methods being the most expensive (namely IUDs). These studies also highlight that some women are unable to use certain forms of emergency contraception due to high costs, and that one-third of women would change their method of contraception to more effective methods if cost were not a limiting factor.

Under federal law, employers should not have the right to impose their religious beliefs on their employees by limiting their medical coverage.

If a for-profit corporation chooses to provide healthcare benefits for its employees, emergency contraception (including morning-after pills and IUDs) is included in the ACA insurance that they have agreed to provide. If healthcare is part of an employee's compensation, then shouldn't those employees have the right to choose how they go about using that compensation?