The effects from the Supreme Court’s interpretation of the Religious Freedom Restoration Act (RFRA) in Burwell v. Hobby Lobby are now rippling through the country. Most recently, the Wisconsin Insurance Commissioner applied the decision in a way that further undermines women’s access to reproductive health care and that violates the Constitution.
A Short History of Women’s Health Care Coverage
The Affordable Care Act’s (ACA) contraception mandate was not a new innovation in health care law. Health insurance plans in many states—when health insurance was still primarily a state power—did not fully cover many important medical services for women. State by state, health advocates pushed governments to require insurance companies to include within coverage health care ranging from mammograms to contraception. Many states did so, including Wisconsin, which enacted WI Stat. § 609.805 and § 632.895(17), which mandate the provision of reproductive health care to women.
Conservative lawmakers in Wisconsin have tried to enact a religious exemption to this provision of women’s medical care but have so far not succeeded. Thus, the law of Wisconsin is that women must be provided contraception coverage in health care plans.
The Federal RFRA May Not Be Used to Disable State Law
Long before Hobby Lobby was decided, in 1997, the Supreme Court held that RFRA was unconstitutional in Boerne v. Flores. At a bare minimum, the decision held that RFRA may not be imposed to disable state laws, because it is a severe violation of federalism and the Constitution’s inherent limits on the federal government. The Court held that RFRA’s extreme and onerous standard could not be imposed on the states. The result was that RFRA may only be applied to federal law, if at all.
It is my view that RFRA is unconstitutional in all of its applications, not simply as applied to state laws, because it violates the separation of powers principle embodied in the Constitution, Article V’s constitutional amendment procedures, and the principle of separation of church and state. But that is a debate for another day and not relevant here.
The Hobby Lobby decision did nothing to change this constitutional reality. The Court applied RFRA to federal law, the ACA’s contraception mandate, and held that RFRA shields for-profit nonreligious corporations from the federal ACA. The decision was only an interpretation of this unfortunate federal statute, which was not mandated by the Constitution, but rather a sui generis addition to free exercise law. Indeed, the Court made it quite clear that it was not holding that the First Amendment mandated an exemption for religious business owners to deprive their employees of coverage for ordinary medical care. In other words, the Court found that Hobby Lobby had a statutory right, not a constitutional right, to block certain medical coverage.
The upshot is that the decision had no effect on state laws mandating health coverage for women, or any other state law.
Wisconsin Commissioner of Insurance Applies Hobby Lobby Unconstitutionally
The Wisconsin Commissioner of Insurance earlier this week announced that it would no longer impose the state’s contraception mandate on religious employers, because of the Hobby Lobby decision, saying that the state law was “pre-empted.” That is simply wrong, and a number of organizations are saying just that, including the Freedom from Religion Foundation.
This is not how Hobby Lobby can affect state laws.
How Hobby Lobby Could Affect State Laws
The Hobby Lobby decision could, however, affect state laws in other ways. While it is not binding on any state law, in those states where a state RFRA has been enacted, the state courts could rely upon it for their reasoning. That is not unconstitutional, though it would be unfortunate to see the Court majority’s far-fetched interpretation also expanding the state versions of extreme religious liberty. State courts should be acutely aware that Hobby Lobby was decided by a deeply divided Court by a vote of 5-4.
State courts could reasonably reject the Court majority’s interpretation of RFRA’s language. First, they can and should hold that a RFRA does not and should not grant rights to for-profit nonreligious corporations. The federal RFRA now does because five members of the Court said so, while four maintained that it should not. State law does not mandate the same result.
Second, they can and should hold that no plaintiff can satisfy the “substantial burden” requirement of a RFRA by invoking what amounts to an attenuated, psychic burden like Hobby Lobby’s.
Third, they can and should hold that no state RFRA claimant can use a state RFRA for purposes of imposing a religious actor’s beliefs on others, as Hobby Lobby’s owner’s beliefs have now been foisted on its employees. The Hobby Lobby majority forced RFRA into a violation of the separation of church and state with this element of its reasoning.
Why can they do this? Because the federal RFRA is a mere statute, and so are the state RFRAs. Despite the pervasive “rights talk” about “religious liberty” by RFRA supporters, the religious liberty accorded by these statutes is neither necessary nor constitutionally required.
The one certainty amidst the post-Hobby Lobby uncertainty is that state governments may not treat the decision as a necessary threat to state laws. Under Boerne, RFRA may not threaten, pre-empt, or invalidate state law.