Hobby Lobby and Freedom from Religious Employers

By Naomi Scheinerman

The decision in Burwell v. Hobby Lobby Stores has been severely scrutinized, from rebukes against corporate personhood to feminists decrying that the Court’s majority, five conservative male judges, devalue and deny women’s personhood. Justice Ginsburg’s scathing dissent and Justices Sotomayor and Kagan’s equally passionate disapproval offer a gendered lens that is impossible to ignore. And further, the Hobby Lobby decision actually does far more harm than good in protecting religious freedoms.

First, Hobby Lobby’s anti-contraception argument relies on fallacious scientific claims that will facilitate further violations of the corporation’s religious beliefs. Hobby Lobby objects to the two IUD’s and Plan B and Ella (emergency contraception) by claiming that using them is akin to having an abortion. This is false. Plan B and Ella prevent ovulation which prevents pregnancy after sex. The International Federation of Gynecology & Obstetrics published a study concluding that because Plan B does not inhibit implantation, it is therefore not an “abortifacient,” a substance that induces abortion. Because Hobby Lobby argued that emergency contraception equals abortions, when in fact emergency contraception does NOT equal abortions, the Court should have thrown out Hobby Lobby’s arguments. As a result of this decision, women who work for Hobby Lobby and are now denied emergency contraception coverage will be much more likely to seek an abortion in their future. Half of women who purchase Plan B do so because of unplanned pregnancy (which includes both consensual and non-consensual sex). Hobby Lobby is paving the way for more abortions, not fewer.

Second, Hobby Lobby’s small closely held corporation’s religious freedoms are being protected at the expense of the freedom from religious imposition on its employees who rely on health insurance to access reproductive freedoms. A closely held company is one in which five or fewer people own the majority of the company. Not only is it strange to treat a corporation as a person with its own convictions, but this decision shows that the Court prefers the religious arguments of a few people in charge over the views of many more who actually work for the corporation. The Religious Freedom Restoration Act of 1993 (RFRA) – the legislation that Hobby Lobby claimed the contraception mandate violated - was originally enacted to protect Native Americans from laws that burdened their exercise of religion. As such, the RFRA was originally constructed to protect employees from theburdensome religious standards of employers and laws. In fact, Catholic and other Christian denominations were even opposed to the RFRA initially because they thought it would protect the “right to a religiously-motivated abortion.” Even if an employee of Hobby Lobby does not have a religious conviction to use contraception, the employers of Hobby Lobby are imposing their religious views by forcing the employees’ actions to align with their own religious practices that forbid abortions. An individual at Hobby Lobby, who is not one of the five people in the entire corporation who wants to prevent contraceptive access, is burdened, something the RFRA was meant to prevent, not allow.

Third, there is real danger in granting religious freedom to corporations that claim exemptions to laws. In Callahan v. Woods, for example, taxpayers used the RFRA to object to the use of social security numbers, arguing that they related to the “mark of the beast.” The Court dismissed this argument. Since the release of the Hobby Lobby decision, many companies have come out of the woodwork, claiming religious exemption to other laws that ban discrimination in hiring or protect women’s reproductive freedoms. The Court ruled that the religious freedom is protected when the law imposes a “substantial burden” on the corporation. This should be interpreted to what the corporation does (its business and goals) rather than how the five or fewer owners feel about the actions of their employees. Is it a substantial burdensome to the selling of paint and brushes to allow female employees to obtain emergency contraption or an IUD?

My last fear is that real and compelling claims of religious exemption, wherein an employer or employee has a true and ethical, religious  belief that a law severely infringes, will become watered down by the numerous unethical claims. About 90% of all American businesses fit the category of closelyheld.  Corporations should not be in the business of determining the appropriate health care package for employees based on religious convictions when it overrides the individual employees’ values. This places an inordinate amount of control on employees’ actions outside the office, such as their reproductive decisions, something the Supreme Court declared was protected by the right to privacy. Employers should not define employee competency by her personal life decisions, but rather based on qualifications and aptitude for the job. This is why employers should not discriminate against gay applicants and should not dictate the sexual freedom of its female employees. Justice Ginsburg accurate identified the dangers of the Hobby Lobby decision: it validates inordinately unethical claims of religious exemption that employers have no right to make.

Naomi Scheinerman is a Research Assistant at The Hastings Center. She graduated Phi Beta Kappa, with high honors and in distinction from the University of Michigan in Ann Arbor, where she received bachelor’s degrees in philosophy, political science, and Hebrew and Jewish Cultural Studies. She contributes a bi-weekly column on reproductive health.