Thursday, October 2, 2014

Reflections on the Hobby Lobby Decision

Reflections on the Hobby Lobby Decision


      Last June, on the last day of the Supreme Court term, it issued sits decision in Burwell v. Hobby Lobby, holding, inter alia, that a business corporation could deprive its employees of certain contraceptive benefits mandated by the Affordable Care Act based upon the religious objections thereto held by the corporation’s shareholders.  For reasons I detailed in an article published in the William and Mary Business Law Review, A Corporation Has No Soul – The Business Entity Law Response to Challenges to the PPACA Contraceptive Mandate, I entirely disagree with the Court’s reasoning in this decision. CLICK HERE TO LINK TO THAT ARTICLE.


One especially unsatisfactory aspect of the decision was the assertion by the majority that in fact it is a very narrow decision and would not have broad application.  This possibility  of broad application was highlighted by Justice Ginsburg in her dissent, and was the point raised in my article that was cited to the US Supreme Court in an amicus brief filed by a group of business law professors.   Essentially, if a corporation can deprive its employees of otherwise statutorily mandated contraceptive coverage, there exists no analytic basis by which the company owned by the observant Jehovah's Witness cannot require exclusion from the employee’s insurance plan of blood transfusions, that the corporation owned by a devout Muslim should not be able to refuse to cover the transplant of a pig valve into an employee’s heart or the Scientologist owned company should not be permitted to exclude from its insurance plan coverage for psychiatric care.


In a recent article by Jeffrey Toobin published in the New Yorker magazine, he suggest that, based upon recent reliance upon the Hobby Lobby decision by various individuals asserting they should not have to comply with an otherwise existing legal obligation because of their religious belief’s, Justice Ginsburg was right.


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