How the Native American Church Got to Use Peyote and Women Got the Hobby Lobby Decision

UPDATE:  As I predicted earlier in this post, the Supreme Court has already expanded an employer's right to deny women access to birth control insurance coverage.  According to Robert Barnes, reporting in today's Washington Post, the court decided in an unsigned opinion that Wheaton College, an evangelical Christian college, does not even have to comply with the remedy the court itself laid out in its Hobby Lobby decision. 

Wheaton College, like the Sisters of the Poor and Notre Dame, objects to filling out the form that states they will not provide the coverage based on their religious beliefs so that the insurance companies can bypass them and provide the coverage directly to the female employees.  Wheaton claims it is a religious burden because it still makes the them complicit in permitting their employees to obtain such insurance coverage.  In other words, if they can't prevent their employees from getting birth control, it's a burden on their consciences. 

Well, the court agreed with this position, although the three female justices are outraged and consider it reneging on what the court itself had agreed to in its earlier opinion.  And it's hard to think the expansion will be limited to just the four contraceptives specified in the Hobby Lobby decision.  More challenges will be coming.  Slippery slope, anybody?

The Hobby Lobby decision (go here for the plain English version) handed down this week would not have happened without the Religious Freedom Restoration Act (RFRA) of 1993.  Indeed, Congress passed the RFRA because the Constitution’s First Amendment failed to protect two members of the Native American Church who were fired for ingesting peyote as part of a religious ceremony and then were denied unemployment benefits.  The case is State of Oregon Employment Division v. Smith.
 
Precisely because the Supreme Court in the 1990s was less activist than today’s SCOTUS, they ruled that as long as a law was religiously neutral and broadly applied, the First Amendment did not exempt religious groups or persons from that law.  So, the plaintiffs were not protected, even for religious reasons, from a drug law, which was not aimed at interfering with religious liberty and that applied broadly to the general public.  Without the RFRA, it’s hard to see how Hobby Lobby would have prevailed today.
 
The RFRA, however, was written to protect individuals and was never intended to be applied to for profit corporations to deny their employees insurance coverage for contraception.  Unlike the Constitution, whose writers’ intentions can only be guessed, those who wrote and voted to pass the RFRA are still here to tell us their intentions, as Leslie Byrne did in her letter to the Washington Post today.
 
Besides distorting the intention of the RFRA, the Hobby Lobby decision is dangerous for one other important reason. It sets a precedent upon which other decisions that erode individual freedom can be based.  It’s called incrementalism and it’s the right’s current very smart strategy to limit access to women’s health and reproductive rights without ever overturning Roe v. Wade.  And contrary to what some court watchers think, it can do mischief to the recent string of victories the LGBT community has won in the same court too. 
 
To show you how subtle and dangerous this approach is, let’s first look at what Hobby Lobby doesn’t do and how that can give everybody a false sense of security
 
At first glance, the decision seems limited in scope.  It only applies to “closely held” corporations, which are usually family-owned small businesses that incorporate for tax purposes and to protect the owners from legal liabilities. The decision also is applicable to just four forms of birth control, leaving sixteen more that Hobby Lobby has provided and will continue to provide.  But Justice Alito has already admitted that the exemption could be expanded to exempt closely held corporations from providing any contraception coverage if that is their religious view. And there are religious people out there who own businesses and oppose all birth control. So expect that challenge in the future.

In addition, nothing actually prevents the court from eventually expanding the exemption from the closely held corporation consisting of a family to publicly held corporations in other rulings based on different circumstances.  Indeed, David Davenport, writing in Forbes, seems to think it could happen. His analysis also agrees with mine that the remedy for more decisions like this is for Congress to amend RFRA to specify the definition of "person" and limit it to only "natural persons."  Unfortunately, with a Republican-controlled House, don't look for that any time soon.

Other specific landmines are tripped by the Supreme Court’s proposed solutions for women who need the IUD or Plan B or Ella, the specific contraceptives Hobby Lobby is now exempt from covering. 

While the court suggested that the federal government could pay for a subsidy to go directly to the women, Alito and the rest of the majority are being disingenuous.  As soon as the government starts subsidizing anything to do with contraceptives, the same religious right that is applauding this decision will be out there objecting to taxpayer money funding something they religiously object to.  Remember, one of the big controversies in the original ACA was whether tax money would go to fund abortions.  So expect that challenge immediately following any attempt by the government to provide the funding for contraceptives too.

 
The one viable option on the table is the same solution currently used to cover those services for employees of religiously based nonprofits, which is to let the insurance companies bypass the company completely and simply offer the services to women they cover for free. If you’re wondering why an insurance company would do this, it’s because covering birth control is cheaper than paying for all the medical services for pregnancy. 

 But in order to do that, the company first has to declare itself a “conscientious objector” and fill out paperwork stating that it objects to paying for that coverage based on religious grounds.  Currently, the Colorado based Little Sisters of the Poor and Notre Dame University are challenging this in court on the grounds that even filling out the paperwork is a religious burden because doing so still enables their employees to get contraceptives, which is the same as if they provided the birth control, so it still violates their religious beliefs .  So look for that challenge too.

 
I’d like to believe that somewhere down the line, the judges will rule enough is enough and that the burden shifted from the legal fiction of the corporate person to the real flesh and blood woman who needs these services.  But given that the majority that decided this are all traditionalist Catholics, I suspect any expansion of rights are going to the other way.
 
That is the way the game of incrementalism is played. The right has been slowly, surely winning in inches what it could never gain outright, ending women’s ability to get needed health services.
 
When states put personhood amendments on the ballot in referendums, they were overwhelmingly defeated even in places as conservative as Mississippi.  Polls have not changed in years, with the country divided over the issue of abortion but just slightly over 50 percent always favoring keeping it legal.  And 99 percent of women have used some form of birth control in the lives  While the country is divided over abortion, there is no ambiguity that Americans support a woman’s right to contraception and family planning services.
 
Yet without ever overturning Roe v Wade or outlawing abortion or contraception, women could lose access to both for all practical purposes.  When you deny women insurance coverage for contraception, you limit her access to it.  When you pass TRAP laws that make it prohibitively expensive for a small business person or doctor to operate an abortion clinic, you also limit a woman’s options and her access.  All of that amounts to denial for practical purposes even though it remains legal on paper.
 
Additionally, those small businesses that don’t want to provide services to gay couples getting married – those bakers, photographers, and others in the wedding industry – will now probably revive their law suits, seeking the same exemption given to Hobby Lobby.  I think there is a very good chance this court will rule in their favor for the same reasons.  Expect that challenge.

Because the religious right has failed to win hearts and minds and even support and votes for its position, it is playing a game of throwing down obstacles and limiting access.  And because it is occurring gradually rather than the sudden overturning of a law, which would be met with howls of protest, there is no outrage beyond the usual suspects, those already highly politically engaged on both sides of the aisle.  For the average person, nothing will change overnight and it’s easy for them to wonder what all the fuss is about.  Until, like the frog in the boiling water, it’s too late to jump out and reclaim what they’ve lost. And that is the game of incrementalism and how it’s played against persons who don’t incorporate.