The U.S. Supreme Court decision allowing for-profit businesses to opt out of the contraceptive mandate in the new health care law has raised questions about what the ruling might mean for businesses, for future challenges to the contraception mandate, and even for the future of church-state law. We posed these questions to Robert Tuttle, one of the nation’s experts on church-state issues. He is the Berz Research Professor of Law and Religion at the George Washington University, and is a Pew Research Center consultant.
1) Are there other aspects of the Affordable Care Act that are likely to face religious-liberty challenges? If so, does the Hobby Lobby decision support those challenges?
Alito’s opinion, and Kennedy’s concurring opinion, repeatedly stress the narrow scope of the decision. Both justices say the ruling applies only to coverage of contraceptives, not to other health care services that might also face religious objections. At the same time, it’s not hard to imagine a business owner having a sincere religious objection to subsidizing coverage of particular treatments – such as blood transfusions, which are opposed by Jehovah’s Witnesses – or to traditional health care in general.
But in Hobby Lobby, the court limited the ruling to contraceptives alone because the government already has an accommodation for religiously affiliated nonprofits that object to covering contraceptives. This accommodation allows nonprofits with religious objections to leave contraception coverage out of their employee insurance plans. Their insurance company is then required to offer and pay for separate policies for female employees who want free contraception.
Kennedy wrote that the government has this alternative for non-profits and that it failed to show why it could not also apply the alternative to for-profit firms like Hobby Lobby. Therefore, according to Kennedy, the government can’t credibly argue that it should not have to accommodate businesses that object on religious grounds to providing contraception. The same would not be true for something like a blood transfusion, where no such alternative currently exists.
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