Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in the case of Hobby Lobby’s challenge to the Affordable Care Act’s birth control benefit. The case was heard by all the active judges on the 10th Circuit, as opposed to a typical panel of three. At the heart of this case is whether Hobby Lobby, a for-profit company, can be required to cover contraception for its over 13,000 employees. Hobby Lobby’s owners contend that some forms of contraception, including the “morning-after-pill,” are in violation of their religious beliefs, because they may cause abortions. This is medically inaccurate.
The main focus for the judges was whether Hobby Lobby, as a for-profit corporation, has a constitutionally protected right to religious freedom. Chief Judge Briscoe asked the lawyer for Hobby Lobby, “Do you have any authority that a for-profit corporation can exercise religion? How does that work?” Perhaps the Chief Judge was skeptical after the District Court held that “[g]eneral business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those ‘purely personal’ matters…which is not the province of a general business corporation.”
Nonetheless, relying on the federal Religious Freedom Restoration Act (“RFRA”), Hobby Lobby’s attorney sought to establish that the birth control benefit would impose a substantial burden on the corporation and its owners. However, in December 2012 three judges on the same court found that “[w]e do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.”
The District Court has already held that Hobby Lobby failed to establish a connection between the contraception requirement and a substantial burden on their religion. What the contraception benefit requires is that Hobby Lobby provides a comprehensive health plan to their employees. It does not require Hobby Lobby to either physically provide birth control to their employees, nor does it force anyone with a religious conviction against birth control to use it.
Imagine if Hobby Lobby was opposed to its employees using their paycheck to purchase birth control?
Because circuit courts across the country have reached various decisions in these cases, it is becoming increasingly likely that this issue will end up before the Supreme Court. It is unclear how the 10th Circuit will rule, but in the meantime we must continue to advocate for the rights of individual women to have unimpeded access to birth control.