Supreme Court’s Hobby Lobby Decision Cheered, Jeered

June 30, 2014       The NonProfit Times      

The United States Supreme Court announced decisions in two cases today that eventually could have implications for large swathes of the nonprofit sector. One was billed as a battle between reproductive rights and religious liberty while the other dealt a blow to labor unions.

The high court struck down as unconstitutional an Affordable Care Act (ACA) provision that requires employers to provide contraception options to employees. In a 5-4 decision, the Supreme Court ruled in Burwell v. Hobby Lobby and Conestoga Wood v. Burwell that requiring corporations to pay for certain types of contraception for their employees violated their owners’ religious freedom under the Religious Freedom Restoration Act of 1993.

Women’s services nonprofits decried the decision as crippling to women’s rights as religious groups cheered what they see is a defense of religious freedom.

“The unfair [federal Department of Health and Human Services] mandate gave family businesses two non-choices: either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for non-compliance,” Tony Perkins, president of the Washington, D.C.-based Family Research Council (FRC), said in a statement after the decision came down. “Thankfully, the threat the HHS mandate imposed on Americans has been deemed unlawful today as a violation of core religious freedom rights.”

Perkins noted in his statement that the ruling does not apply to nonprofits. “While we celebrate this landmark decision, it is our hope that lower courts will follow the Supreme Court’s lead and protect nonprofits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHS mandate,” he wrote. According to The Becket Fund for Religious Liberty, a nonprofit law firm based in Washington, D.C., there are more than 50 pending lawsuits with nonprofit plaintiffs challenging the same Affordable Care Act provision.

Cecile Richards, president of Planned Parenthood Federation of America, said via a statement that the high court’s ruling gives “bosses the right to discriminate against women and deny their employees access to birth control coverage. This is a deeply disappointing and troubling ruling that will prevent some women, especially those working hourly-wage jobs and struggling to make ends meet, from getting birth control.”

The justices were split along ideological lines. Liberals Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer were in the minority while conservatives Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito voted in favor. Frequent swing vote Justice Anthony Kennedy sided with the conservatives on the court.

“Here…the plaintiffs do assert that funding the specific contraceptive methods at issue violates their religious beliefs, and HHS does not question their sincerity,” Alito wrote for the majority. “Because the contraceptive mandate forces them to pay an enormous sum of money — as much as $475 million per year in the case of Hobby Lobby — if they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs.”

Writing for the minority, Ginsburg called the decision a mask by which corporations can discriminate based on their faith. “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”

The suit was brought against the federal Department of Health and Human Services by two private companies owned by Christian families: crafts store chain Hobby Lobby and cabinetmaker Conestoga Wood Specialties Corporation. The plaintiffs contended that certain types of birth control, such as the Plan B morning-after pill, were tantamount to abortion and that by providing such forms of birth control to their employees they would be violating their religious beliefs. The plaintiffs noted that they do not object to other forms of birth control such as condoms and spermicide.

In a separate decision, the court ruled that home health aides in Illinois receiving their wages through Medicaid could not be forced into unions. The majority ruled in Harris v. Quinn that health aides receiving entitlement program funds, called partial public employees, were not state employees and could not be forced into a union or paid fees. Illinois Gov. Pat Quinn issued in 2009 an executive order that said such workers would be considered state employees and unionized as a condition of receiving state funds. The plaintiffs said that forced unionization violated their First Amendment rights.

“Agency-fee provisions unquestionably impose a heavy burden on the First Amendment interests of objecting employees,” wrote Alito in the majority. The case was decided 5-4 along the same lines as Burwell v. Hobby Lobby.

“At a time when wages remain stagnant and income inequality is out of control, joining together in a union is the only proven way home care workers have of improving their lives and the lives of the people they care for,” said Mary Kay Henry, president of Service Employees International Union (SEIU), based in Washington, D.C.

The National Right To Work Legal Defense Foundation (NRWF), the nonprofit law firm that represented lead plaintiff Pam Harris and seven others, called Quinn’s executive order a “scheme” and said the decision renders unconstitutional similar orders in 18 states besides Illinois.

“We applaud these homecare providers’ efforts to convince the Supreme Court to strike down this constitutionally-dubious scheme, thus freeing thousands of homecare providers from unwanted union contracts,” said NRWF president Mark Mix.