A note on the Hobby Lobby disinformation industry


“The contraceptive mandate, as applied to closely held corporations, violates RFRA.”

Justice Alito for the majority in Burwell v Hobby Lobby.

The Hobby Lobby decision has spurred a lot of disinformation, some of it from those who distort the decision to downplay its real holding and its broader implications (or it is form those who just do not understand legal reasoning). The disinformation machine works by attacking its critics with assertions or distinctions that really are immaterial. A previous blog of mine entitled “Five votes. Five Catholics. Five men: What is Wrong with the Hobby Lobby Decision” along with a Minnpost op-ed I penned were attacked along this line where I was accused of not reading the decision or being dishonest about what it said.

One way to distort Hobby Lobby was highlighted by no less than Fox’s rocket scientist Megyn Kelly who contended that Hobby Lobby and the other plaintiff’s only objected to four of the 20 contraceptive drugs. They did so because those four drugs may have the ability to act as an abortifacient. While this is true factually it is immaterial to the holding in the case. The Supreme Court did not rule that the Affordable Care Act’s (more specifically, the HHS rule) contraceptive mandate as it applies only to abortion violated RFRA. Instead, as noted in the quote from the majority opinion, they ruled that the entire contraceptive mandate as applied to closely held corporations violated RFRA. While Hobby Lobby may only have had objections to abortion the Court went further in invalidating the entire contraceptive mandate (as applied to closely-held corporations). Thus whatever Hobby Lobby may have narrowly objected to, that is not what the Court ruled on. Its decision was broader.

Thus, one spin in this case is to say it is about abortion and not contraception in general. The actual holding in the case does not make that distinction. Moreover, such a distinction is not even material. The four drugs objected to by Hobby Lobby and other plaintiffs, as the Court points out, “may” serve as abortifacients. It is also the case that they may not do that. What the majority allows for is an employer to inquire or second guess medical treatment of women and say they do not want to pay for certain drugs because they may do certain things such as potentially induce abortions. Further, by the actual language of the Alito opinion, there is nothing to prevent a employer in a closely-held corporation from objecting to all of the contraceptive mandate, including all of the 20 drugs referred to in the opinion.

Even further, while the decision only applies to contraceptives, there is nothing in the decision that closes the door to objections to other medical treatments such as vaccinations. While the majority contends that under RFRA there may be other compelling governmental interests that outweigh religious objections to them, the Court did not (and could not) in this case say that if adjudicated these religious objections would not be upheld. Finally, while the majority opinion said that the case only applied to closely-held corporations, the language of RFRA and the decision itself does not foreclose application to all corporations. The majority merely at this point said it neither knew of nor thought that many public corporations would have such religious objections. Again, the Court did not rule and say that RFRA would protect them if they had such an objection, but they also correctly did not preclude such a possibility.

As any good lawyer knows, cases have facts and sometimes courts decide narrowly based on them. This is what lower courts do. But appellate courts such as the Supreme Court do more than make narrow factual rulings, They decide cases that are often broader than the facts in the case and have broader precedent than what the litigants want. This is the case with Hobby Lobby. As you listen to the Hobby Lobby disinformation machine please note what the Court actually ruled and think also about the legal implications of the decision. It is far different from what the Megyn Kelly’s of the world spin.