Pro Life Legal Defense Fund, Inc.
SAVING RELIGIOUS FREEDOM FOR THE TIME BEING
By Dwight G. Duncan

On the last day of its term, the U.S. Supreme Court handed down its decision in the case of Burwell, Secretary of Health and Human Services, v. Hobby Lobby Stores, Inc., the religious-freedom challenge to the requirement that employers provide free coverage for contraceptives that can cause abortion by preventing the implantation of a human embryo into the wall of the mother’s womb. Hobby Lobby and Conestoga Wood Specialties, both closely-held family-run businesses, objected to cooperating with the free provision of only those 4 out of 20 HHS-mandated contraceptives, because of the families’ religiously based conscientious objection to abortion.


                In a 5-4 decision, whose majority opinion was written by Justice Samuel Alito, the Court upheld the religious freedom challenge to the contraceptive mandate. The Court did not reach the constitutional free-exercise challenge to the regulation, as it relied on the Religious Freedom Restoration Act (RFRA), passed overwhelmingly by Congress in 1993. That law, as amended in 2000, covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”


                The Court held that business corporations were “persons” within the meaning of RFRA, and that as applied to closely-held corporations, the HHS contraceptive mandate violated RFRA. (Both the majority opinion, and the chief dissent by Justice Ginsburg, cited William Blackstone, the 18th century master of the common law, that there were two types of corporations, ecclesiastical and lay, and Alito explained that lay corporations could also have religious purposes. The amicus brief filed for the Pro-Life Legal Defense Fund and other non-profits had cited the same section of Blackstone, and illustrated it with the example of the Massachusetts Bay Company.)


                The Court also found that the mandate substantially burdened the exercise of religion by forcing the families that run the businesses to violate their sincere religious beliefs or pay substantial fines. And so the two-part requirement of RFRA was triggered, which requires that there be a compelling government interest supporting the regulation, and that it be the least religiously-restrictive way of achieving that purpose. The majority assumed without deciding that there was a compelling government interest in furnishing free contraceptives, but said that there were lesser ways the government could use to achieve that end, such as providing them itself or requiring the insurers to provide them directly to the employees.


                On the courthouse steps the morning the decision was announced, there were groups from both sides demonstrating and protesting. The pro-government contingent had a curious slogan, “My birth control is none of your business.” Precisely. You don’t have to make those religiously opposed to abortion cooperate in the provision of these forms of birth control.  That’s their business.


Dwight Duncan is a member of the Massachusetts and Washington, DC bars, the Board of Directors of the Pro-Life Legal Defense Fund, and serves on the Board of Advisors of Massachusetts Citizens for Life.  He is a Professor of Law at UMass School of Law, where he teaches courses in Constitutional Law, Legal Ethics, Religion and the Law, and Bioethics. He recently authored an amicus brief in support of the pro-life petitioners in the successful Burwell v. Hobby Lobby case at the United States Supreme Court.