Originally posted on the Gender & Sexuality Law Blog on August 14th, 2014.
The words “religious freedom” used to bring to my mind the image of Samah, a girl in Colorado who was denied the right to play soccer while wearing her hijab until her high school teammates all wore them in solidarity to the next game. I used to think of the Christians in Egypt who formed a circle around their praying Muslim neighbors to keep them safe from the surrounding protests in the streets. I thought of individuals asserting their right to religious exercise, of people coming together to advocate for the right to worship free from discrimination. Now, I think of a hypocritical discriminatory craft store and get a very different picture in my head. I imagine the Supreme Court in an episode of Oprah’s Favorite Things, Justice Alito on stage facing Hobby Lobby executives and Wheaton College administrators: “And you get an accommodation! And you get an accommodation!” Except in this episode the women are furious, some are facing unwanted pregnancies, and the only gift under their chairs is the Bible.
When promulgating new regulations implementing the Affordable Care Act, the Department of Health & Human Services (HHS) included an accommodation form for religiously affiliated institutions and non-profit organizations, to allow them to refrain from paying for coverage of contraceptives if they had a religious objection to doing so. The regulations required the objecting organization to send a designated form to HHS and a copy to their third-party insurer, which was designed to let the insurer know that it must supply contraceptive coverage separately to plan members at no cost to the organization or the insured individuals. In the Hobby Lobby Supreme Court case, Justice Alito, writing for the majority, held that the non-profit accommodation had to be extended to closely held for-profit corporations. The extension of an already broad religious exemption delivered hope to the plaintiffs of many similar cases suggesting that they too might receive special treatment for their beliefs.
One problem with this decision is that exempting Christian organizations doesn’t just affect Christian people. Unlike houses of worship, religiously affiliated non-profits often employ workers who do not share the religious beliefs of their employers. Some hospital systems are religiously affiliated non-profit organizations, for instance, and may employ thousands of people with diverse beliefs. Another problem is that even organizations allowed to use the exemption have sued, saying that even the exemption violates their rights. Shortly after the Hobby Lobby decision came down, the Supreme Court issued a temporary order in favor of Wheaton College, a Christian school whose administrators object to providing emergency contraceptive coverage to employees and students. Wheaton claimed that even the paperwork for the accommodation was a burden on its religious exercise because “authorizing its [third-party administrator] to provide these drugs in [its] place makes it complicit in grave moral evil.” The Court’s injunction allows Wheaton College to refuse to file the form with HHS and its insurance company and allows it to simply inform HHS in some written form of its objection, without having any obligation to inform its insurance company. This decision requires HHS to restructure how they manage accommodations so that they can handle more incoming requests.
The danger that women will slip through the cracks when it comes to a college or university affects not only employees, but also students who may have fewer resources for protecting their reproductive health. If a student is looking to purchase emergency contraception, shouldn’t he or she be able to do so without having to go through confusing roundabout coverage? Studies have shown that even moderate copays for health services can result in an individual not obtaining the care they need.
Where will the accommodations end? Laws that allow the very thing they are prohibiting cannot be effective, and they encourage discrimination and endanger citizens. As for the Supreme Court, the majority of the men on the bench seem to hold the claims of religious employers in high esteem, addressing the needs of the Hobby Lobby employees in just a few sentences. The decision to grant Wheaton’s injunction demonstrates that the Court is venturing further into the minefield Justice Ginsburg warned of in her dissent from the Hobby Lobby decision, and further and further away from the ideals for which our courts and country should stand.
 Burwell v. Wheaton College, page 10 http://www.supremecourt.gov/opinions/13pdf/13a1284_ap6c.pdf
 Burwell v. Hobby Lobby, page 45 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
 Burwell v. Hobby Lobby, page 94 http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf
Sasha Conley is the Public Rights / Private Conscience Project Summer Junior Fellow and a rising junior at Hampshire College.