The U.S. Supreme Court handed down one of its most anticipated decisions of the term today in Burwell v. Hobby Lobby, in which it held in a 5-4 ruling that the Religious Freedom Restoration Act of 1993 (RFRA) prohibits the federal government from requiring “closely held corporations [to] provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.” (Opinion, p. 1). The basis for this decision was that “the regulations that impose this obligation violate RFRA, which prohibits the Federal Government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest.” (Id., pp. 1-2).
With regard to the substantial burden, the Court held that “the challenged HHS regulations substantially burden the exercise of religion . . . . [because] [t]he owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies.” (Id., p. 2). Justice Ginsburg delivered a dissent (joined by Justice Sotomayor in full and in part by Justices Breyer and Kagan), in which she states that the “the connection between the families’ religious objections and the contraceptive coverage requirement is too attenuated to rank as substantial” (Dissent, p. 22) and that “It is doubtful that Congress, when it specified that burdens must be ‘substantia[l],’ had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed.” (Dissent, p. 23).
As highlighted in Justice Kennedy’s concurrence, a less restrictive alternative is purported to be available because “in other instances the Government has allowed the same contraception coverage in issue here to be provided to employees of nonprofit religious organizations, as an accommodation to the religious objections of those entities . . . . by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it.” (Concurrence, p. 3). According to the dissent, this reasoning would lead to there always being a less restrictive alternative “whenever, in lieu of tolling an enterprise claiming a religion-based exemption, the government, i.e., the general public, can pick up the tab.” (Dissent, pp. 1-2). After reviewing the proffered alternatives, Justice Ginsburg concludes that none “would satisfactorily serve the compelling interests to which Congress responded” when they provided for “comprehensive preventive care for women furnished through employer-based health plans” (Dissent, p. 31).