High Court issues narrow Hobby Lobby birth control ruling

Alito noted that Hobby Lobby and three similar companies affected by the ruling are not publicly traded and are each owned and controlled by members of a single family.

Justice Alito also said the majority has not written a ruling that will apply to HHS vaccination mandates, blood transfusion mandates, or other mandates other than the birth control mandate.

“HHS points to no evidence that insurance plans in existence prior to the enactment of [PPACA] excluded coverage for such items,” Alito writes. “Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of [PPACA's] coverage requirements other than the contraceptive mandate.”

Critics of the idea that RFRA can apply to companies — including two dissenting Supreme Court justices: Ruth Bader Ginsburg and Sonia Sotomayor — argued that RFRA provides religious rights only for individual people, not for companies.

Ginsburg and Sotomayor said they think other types of corporations, including big, publicly traded corporations, may be able to use the arguments given in the Hobby Lobby case to justify RFRA suits.

“Although the court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private,” Ginsburg writes in a dissent. “The court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.”

Two other justices Stephen Breyer and Elena Kegan — said the Hobby Lobby case plaintiffs’ challenge to the HHS birth control mandate fails on its merits, but they said they did not need to decide whether for-profit corporations or the owners of for-profit corporations can bring RFRA claims.

In a concurring opinion supporting the majority decision, Justice Anthony Kennedy writes that the Hobby Lobby opinion is not as sweeping as Ginsburg and Sotomayor fear. HHS at least had an obligation to show that the mandate was the least restrictive means for achieving the goal of providing low-cost access to contraceptives, and it did not do that, Kennedy writes.

The government already lets nonprofit employers avoid paying directly for contraceptive benefits, and that shows there is a less restrictive approach HHS could have used to accommodate the needs of closely held for-profit employers with objections to the birth control mandate, Kennedy writes.