Hobby Lobby Spells Doom for Mandate 2.0

Ruling in favor of Hobby Lobby, the Supreme Court decided that companies with religious objections cannot be required to provide health coverage for certain contraceptive services. In this week’s conversation, scholars discuss the implications of this decision for religious freedom and explore the wider role of religion in American public life.

By: Kyle Duncan

This week’s Hobby Lobby decision has unleashed a torrent of reaction, ranging from dancing in the street to gnashing of teeth. I represented Hobby Lobby, so put me in the dancing camp. Instead of adding to that commentary, however, it’s worth considering what the decision portends for challenges now percolating through lower courts by religious nonprofits. Hobby Lobby gives those organizations solid grounds for hoping their suits will succeed too.

The nonprofits—which include the Little Sisters of the Poor, the Eternal Word Television Network, and schools like Wheaton College and the Catholic University of America—are operating under a version of the HHS mandate slightly different from the one invalidated in Hobby Lobby. Call it Mandate 2.0. Under this “accommodation,” religious organizations need not cover contraceptives directly in their health plans. Instead, they must execute a form that authorizes their insurer or administrator to deliver that same coverage to their employees. 

The problem for the non-profits is that the contraceptive coverage goes into effect only if they execute the form. Their signature is the triggering event—the starter’s pistol, the ringing-the-opening-bell-on-Wall-Street—that initiates the revamped contraceptive delivery system. Once they grasped how Mandate 2.0 works, most objectors said to themselves, “This is just as bad as Mandate 1.0. It’s just an extra layer of paperwork.” 

Some will say, “Signing a form is no big deal.” Really? How about signing a mortgage? A living will? What if the President signs an executive order? What if a governor signs a death warrant? The physical action of signing these pieces of paper is trivial. The consequences can be life-altering. So, one need not consult Thomas Aquinas to grasp a religious organization’s objection to signing this particular form. By doing so, they would authorize an agent to deliver on their behalf the same services they object to in the first place. 

Hobby Lobby did not consider Mandate 2.0. So how might it help the nonprofits? The answer is that the Court explained when the government “substantially burdens” religious exercise. The government had argued that Mandate 1.0 was not a substantial burden because the business owners’ connection to contraception was “attenuated”: theydidn’t have to take the drugs but rather only had to cover them. The Court rejected that theory. Whether the business owners were complicit, the Court explained, “implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.” The Court rejected the government’s “attenuation” argument as an attempt to “[a]rrogat[e] the authority to provide a binding national answer to this religious and philosophical question.” 

That analysis dooms Mandate 2.0. After all, the government created the “accommodation” to buttress its “attenuation” argument. And so, in the non-profit litigation, it has claimed that Mandate 2.0 makes a religious objector even further“attenuated” from contraception. Before Hobby Lobby, that argument was specious; now it is extinct. The government cannot rewrite the theology of religious objectors by adding a layer of bureaucracy to its contraceptive delivery system. 

Some, however, think Hobby Lobby implicitly approved the accommodation by pointing to it as an alternative means for delivering contraceptives. That is implausible. The Court clearly said it was not deciding the validity of the accommodation, provoking criticism from the dissent. And the Court specifically endorsed the injunction it had previously granted the Little Sisters that allowed them to avoid executing the government’s form. (For more on this, see here Ed Whelan’s “More on the Accommodation Alternative” in the National Review.) 

The idea that Hobby Lobby spells doom for Mandate 2.0 was given a powerful boost not three hours after the decision. Relying on Hobby Lobbythe Eleventh Circuit granted EWTN an injunction pending its appeal from a lower court decision that had accepted the government’s “attenuation” argument. That is significant in itself, since EWTN had to show likelihood of success to get the injunction. But one of the panel members, Judge William Pryor, delivered a 26-page concurrence explaining why Hobby Lobby eviscerates the government’s case against EWTN. Of the “attenuation” argument, Judge Pryor said it “calls to mind the proverbial Mizaru, Kikazaru, and Iwazaru who cover their eyes, ears, and mouth to see, hear, and speak no evil. That is, the United States turns a blind eye to the undisputed evidence that delivering Form 700 would violate [EWTN’s] religious beliefs.” Judge Pryor’s sparkling opinion has been analyzed in detail here, but suffice it to say that it may be the beginning of the end for Mandate 2.0. 

Kyle Duncan was formerly general counsel of the Becket Fund for Religious Liberty, where he was lead counsel representing Hobby Lobby Stores in its challenge to the HHS mandate.

This piece was originally authored on July 2, 2014 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.