Looking at Hobby Lobby Through a Human Rights Lens
Burwell v. Hobby Lobby Stores has been widely criticized for extending religious rights to the actions of for-profit corporations. But the case is also problematic because once the Supreme Court held that the Religious Freedom Restoration Act applied, the substantial burden test did not require the Court to balance religious rights with the other fundamental rights at stake. Had the Court employed a human rights analysis that considered the health care, liberty, dignity and autonomy rights of women in addition to the religious rights of Hobby Lobby’s shareholders, the outcome might have been different.
Hobby Lobby challenged the Affordable Care Act’s requirement that employers’ group health plans provide preventative care, including certain forms of contraceptives. Hobby Lobby and two other for-profit corporations argued that RFRA prevented application of the contraceptive mandate to them. Once the Court determined that RFRA protections applied, it employed the substantial burden test. The test prohibits the government from substantially burdening a person’s exercise of religion unless the burden (1) furthers a compelling government interest and (2) is the least restrictive means of furthering the interest. Although Justice Alito grudgingly accepted that the government had a compelling interest in guaranteeing access to cost free contraceptives, the Court’s decision fails to recognize the full scope of the government’s interest or the role that the contraceptive mandate had in protecting and ensuring women’s rights.
Human rights law recognizes that access to affordable contraception is a fundamental component of women’s health, liberty, dignity and equality. Because human rights law recognizes the importance of the right to access contraception, decisions from human rights bodies and other countries are carefully drawn to balance the right to exercise religion with the right to reproductive autonomy and health care access when they conflict. Religious rights are respected and accommodated but conscientious objection can not be used as a weapon to impose one person’s religious beliefs on another, take away personal autonomy over health care decisions or preclude access to health care services.
As set forth in an international and comparative law scholars brief submitted in Hobby Lobby, other countries balance these rights by limiting the right to conscientious objection to individuals directly involved in providing services – e.g., doctors providing abortions, pharmacists dispensing contraceptives – and only allowing them to refuse to provide medical services that conflict with their religious beliefs if it does not compromise the health and reproductive rights of others.
Although the cases do not deal with claims regarding the provision of health care insurance benefits, the religious claims of employers who seek to be exempted from providing comprehensive preventative care seem too attenuated from the religiously objectionable act to raise a valid claim of conscientious objection. Indeed, as other scholars have commented, a claim that the provision of health insurance to employees that covers contraception somehow implicates the employer in the employee’s choice to use (or not use) contraception misperceives the nature of health benefits which are “a form of compensation, like wages earned by and belonging to the employee.”
Of course, we would not be in a conversation about whether corporations have the right to limit their employee’s reproductive health choices if health care was not tied to employment. The National Economic and Social Rights Initiative writes that the Hobby Lobby illustrates a fundamental flaw in the Affordable Care Act because the act’s reliance on businesses and insurance companies to provide health care coverage is inconsistent with recognition of health care as a human right. “Had the federal reform effort instead opted to treat health care as a public good, decoupled from employment and financed publically, it could have ended corporations’ role in restricting access to health care – be they employers or insurers.”