A federal appeals court in Washington, DC handed down a decision on Friday that could neutralize some of the impact of the Supreme Court’s decision in Burwell v. Hobby Lobby if it is upheld on appeal. Hobby Lobby held that employers with religious objections to birth control have broad immunity from federal rules requiring them to include birth control in their employer-provided health plan. Judge Nina Pillard’s decision in Priests For Life v. Department of Health and Human Services, however, indicates that there are limits to an employer’s ability to deny birth control coverage to their employees.
To explain, Hobby Lobby exempted employers with religious objections to birth control from a rule requiring contraceptive coverage to be included in employer-provided health plans. At the same time, however, the Court suggested that it might be possible for the government to accommodate religious objectors while still ensuring that birth control was widely available to women in the workplace. Prior to Hobby Lobby, the government accommodated non-profit employers by allowing them to exempt themselves from the birth control rules so long as they filled out a form notifying the government and their insurance administrator of their objection. In most cases, the insurer would then contract separately with the religious objector’s employees to ensure that they received contraceptive coverage. After Hobby Lobby, the government extended this accommodation to for-profit businesses and allowed religious objectors to invoke the accommodation through an alternative means if they objected to the form the government provided.
Judge Pillard’s opinion holds that this accommodation is enough to satisfy the government’s obligation to religious objectors, and it relies, in part, on Justice Samuel Alito’s opinion in Hobby Lobby to achieve this result. Hobby Lobby described the very same accommodation at issue in Priests For Life as “an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty.” Moreover, as Pillard writes in her opinion, “the Supreme Court stressed that [the accommodation] alleviates the burden on the plaintiffs of having to provide contraceptive coverage and ‘serves HHS’s stated interests equally well.'”
Elsewhere in her opinion, Pillard lays out another flaw in the argument claiming that this accommodation does not go far enough to protect employers with religious objections to birth control. The Religious Freedom Restoration Act, which is the federal law governing religious liberty claims, applies when the federal government “substantially burden[s] a person’s exercise of religion.” Yet, as Pillard explains, the burden in Priests For Life could not be any more insignificant. “All Plaintiffs must do to opt out,” she explains, “is express what they believe and seek what they want via a letter or two page form. That bit of paperwork is more straightforward and minimal than many that are staples of nonprofit organizations’ compliance with law in the modern administrative state.” Indeed, Judge Pillard writes, “[t]he accommodation requires as little as it can from the objectors while still serving the government’s compelling interests.”
So, on the surface, Pillard’s opinion appears likely to survive review by the Supreme Court — if such review is even necessary at all. She relies on the language and reasoning of Hobby Lobby itself to justify her opinion, and she upholds a federal rule that imposes an extraordinarily mild obligation on employers. They must simply fill out a one page form or mail off a very short letter.
There are three reasons, however, why the fate of her decision is less certain. The first is that Pillard was a member of a particularly liberal panel when she decided this case — the other two judges who joined her opinion were appointed by Presidents Clinton and Obama. Pillard herself may be the closest thing the federal judiciary has to another feminist icon like Justice Ruth Bader Ginsburg. As an attorney, Pillard litigated two major women’s rights cases before the Supreme Court, and as a law professor she authored a pre-Obamacare article arguing that “[t]he lack of a national requirement that insurance plans cover women’s contraceptives is emblematic of a much broader failure to make contraceptive access a priority to reduce the extremely high numbers of unintended pregnancies in the United States.” The five conservative justices, to say the least, do not share Pillard’s commitment to women’s equality and reproductive freedom.
Moreover, while Pillard is correct that federal religious liberty law only applies in cases where someone’s religious exercise is substantially burdened, Justice Alito’s opinion in Hobby Lobby comes very close to reading this requirement out of the law. According to Alito, the Hobby Lobby plaintiffs’ “sincerely believe that providing the insurance coverage demanded by the HHS regulations lies on the forbidden side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial.”
Finally, despite the language in Hobby Lobby suggesting that the accommodation at issue in Priests For Life is acceptable, the Supreme Court called this language into doubt just days after Hobby Lobby in a case called Wheaton College v. Burwell. Dissenting in Wheaton College, Justice Sonia Sotomayor even implied that the Court’s majority was deceptive in Hobby Lobby. “Those who are bound by our decisions usually believe they can take us at our word,” Sotomayor wrote. “Not so today.”