The immediate import of the Supreme Court’s decision seems to be that the two companies in question, Hobby Lobby and Conestoga Wood, will receive the same accommodation afforded religious non-profits; namely, their female employees will have the contraceptive services objected to by the companies covered by the insurance company covering or administering their plans.
How will that come about? Yesterday, White House press secretary Josh Earnest said that President Obama would have to work with Congress “to make sure that any women affected by this decision will still have the same coverage of vital health services as everyone else.” But if the Administration could, on its own, provide the accommodation to religious non-profits, there’s no reason, so far as I can see, it couldn’t simply extend it to the two for-profit companies and any others it judges to meet the court’s standard of “closely held” and religiously bona fide.
On the other hand, this may be a clever way to put senators and representatives on record as supporting or not supporting contraceptive coverage. Surveys show that Americans support mandating coverage, and this could be a useful issue in a highly consequential off-year election.
Be that as it may, the larger question has to do with the extent of the ruling — whether it is, as Justice Ginsburg wrote in dissent, “of startling breadth” or, as Justice Kennedy indicated in his concurrence, carefully limited. I go along with UVA Prof. Douglas Laycock in taking the limited view, but let’s assume that next year at this time the court decides that, under the Religious Freedom Restoration Act, the state does not have a compelling interest in mandating contraceptive services in health insurance policies, and therefore rejects the accommodation for religious non-profits (and, by extension, faith-based for-profits). What then?
Well, there’s a potential partial remedy that no one’s talking about. Twenty-eight states currently mandate contraceptive coverage in their insurance law. While these states vary among themselves in the exemptions they permit, only one (Illinois) extends it to for-profit companies. In some cases, religious non-profits have escaped the mandate by self-insuring, thereby supposedly removing themselves from state jurisdiction in this regard, but the issue has never been litigated as far as the Supreme Court.
One way or another, a state mandate would likely go all the way up, and then the court would have an entirely different legal situation on its hands. That’s because the Religious Freedom Restoration Act doesn’t apply to the states. All the state would have to show was that its contraception mandate was, as Justice Scalia wrote in Employment Division v. Smith, a neutral law of general applicability.