Federal appeals court upholds HHS’s Hobby Lobby workaround. Again.

In a ruling issued earlier today, the Sixth Circuit Court of Appeals rejected a claim from a coalition of Catholic organizations, which argued the Department of Health and Human Service’s workaround to the Supreme Court’s Hobby Lobby ruling violates their religious freedom.

The ruling was an affirmation of the appeals court’s earlier ruling on the same issue. Once again, Hobby Lobby prevents the government from requiring religious institutions from providing health insurance plans for their students and employees that cover contraception, but it doesn’t prevent the government from providing contraception to those students and employees.

In Hobby Lobby, the Supreme Court ruled that the government can’t require religious non-profits and closely-held corporations to provide health insurance plans that cover certain kinds of contraception if those entities have sincerely held religious beliefs banning the use of such contraception. In response, the Department of Health and Human Services announced that organizations claiming such beliefs would need notify the government to officially declare their belief, at which point HHS would direct the relevant insurance company to provide the contraception coverage separately. As contraception is cost-neutral — pregnancy is way more expensive than IUDs — the separate coverage comes at no cost to the insurer or the religious organization.

As the court held, religious organizations are required to do nothing more than say to the government, “I don’t support contraceptive coverage and I’m not going to pay for it. You and my insurer figure out what to do from here.” That isn’t an undue burden on religious belief; that’s an affirmation of it. As the Court wrote in their opinion:

IUD, via Shutterstock

IUD, via Shutterstock

Hobby Lobby tells us, in sum, that the government cannot compel closely held companies with sincere religious objections to provide contraception coverage to their employees. But that issue is fundamentally different from the issue at the heart of this case—whether an entity’s decision not to provide such coverage by exercising an accommodation is, by itself, a violation of that entity’s religious beliefs. We upheld this accommodation against a RFRA challenge in
our initial opinion. Nothing in Hobby Lobby changes this analysis.

One would think that this would be an acceptable compromise. Religious organizations get their liberty to not provide health insurance plans that cover contraception, and students and employees get their contraception. Everyone wins, right?

Wrong. Religious organizations insisted that the requirement that they tell the government that they were entitled to not pay for plans covering contraception was a bridge too far, with one college going as far as to stop providing health insurance to its students altogether rather than comply with the rule. To them, this isn’t about the freedom to not provide access to contraception, this is about the freedom to actively restrict access to contraception.

And that isn’t a freedom protected by the First Amendment.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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