Whether Religious Freedom Restoration Act claims will proliferate following the Supreme Court’s recent ruling in favor of Conestoga Wood and Hobby Lobby, as dissenters warned, has yet to be seen.
However, reactions to the ruling made it clear that business owners and employees alike have strong feelings on both sides of the issue.
Lin Weaver, Shady Maple Farm Market store manager, is among those rejoicing at what he calls “a victory for people of the pro-life stance, and a victory for Christian values.” His company has about 400 employees and offers health insurance to them; he declined to provide further details on what that insurance covers, but he says he generally expects that more businesses will seek to follow Hobby Lobby and Conestoga Wood’s lead.
“We also believe in the rights of women, and we don’t want to stand in people’s way in what’s legal in the United States,” Weaver says. “But we ourselves do not want to offer things that go against what we believe in.”
Exactly how a company would go about claiming the contraception mandate exemption that Hobby Lobby and Conestoga Wood won is not yet clear.
“Though the law is now settled, it will take some time for the government to set a policy for handling this,” says Randall Wenger, chief counsel at Harrisburg-based Independence Law Center, who represented Conestoga throughout its lengthy legal battle. “However, if a similar claim were brought today in any U.S. District Court in the country, a judge would have clear direction for granting an injunction on behalf of religious liberty. Because of that, I think it reasonable that the government would not oppose the entry of a preliminary injunction.”
Eric Athey, an attorney who co-chairs the labor and employment division at Harrisburg-based McNees Wallace & Nurick LLC, doesn’t necessarily agree with Wenger that the Supreme Court ruling marks the legal settling of the matter.
“An often overlooked aspect of the debate over the contraception mandate is that the Equal Employment Opportunity Commission has, in the past, taken the position that an employer’s exclusion of contraception from a group health plan may constitute unlawful discrimination under Title VII and the Pregnancy Discrimination Act,” Athey wrote in a blog post following the decision. “Until that question is resolved, employers who may be exempt from the contraception mandate under ACA may nevertheless face EEO challenges if they exclude coverage for contraception.”
An injunction issued in a separate case just days after the Conestoga Wood and Hobby Lobby ruling could also have some bearing on the issue, Athey said. The government’s current accommodation for nonprofits with religious objections to providing contraceptives requires them to submit an EBSA Form 700 to a third-party insurance plan administrator; the insurer, not the company, is then required to meet the demands of the contraception mandate.
That accommodation is one the Supreme Court’s ruling listed as a possible “least restrictive means” to reconcile the legal demands of the contraception mandate with the religious rights of for-profit companies like Conestoga Wood and Hobby Lobby. However, nonprofits, including Wheaton College in Illinois, are objecting to filling out the form, and on July 3 the Supreme Court issued an injunction saying that while the legal challenge continues, Wheaton does not have to.
“If the Wheaton case results in a ruling that the EBSA 700 Form is not the ‘least restrictive means’ of affording this accommodation to religious nonprofits, then this ruling would likely carry over to closely held for-profit corporations,” Athey says.