In their opinion, the four dissenting judges that the ruling opens the door for companies to “opt out of any law they judge incompatible with their sincerely held religious beliefs.” But University of South Carolina School of Law health care law and policy professor Jacqueline Fox explained that the way the decision is framed makes that scenario highly unlikely.
“This opinion squarely says ‘small family-owned, closely held corporation where no one is questioning the sincerity of the religious beliefs of the family,'” Fox told South Carolina Radio Network. “So to expand it past there is going to be hard.”
Fox said the practical result will likely be an administrative fix by the Obama administration that subsidizes the contraceptives at issue, picking up the coverage that Hobby Lobby would leave off. She said Justice Anthony Kennedy, who cast the swing vote, referred to this process in his opinion.
“There were four (justices) upholding Hobby Lobby, four dissenting, and one concurring with the majority opinion and that was Kennedy. Kennedy’s point was that there was an option to get full coverage of birth control for the women who are employees of Hobby Lobby and similar companies.”
Fox noted that when several churches and other religious nonprofits objected to providing contraceptive services in 2012, the government instead struck a compromise with insurance companies to provide the care under a separate rider that ends up not cost the employers anything.
“Employees will still have access to the coverage through this separate rider that the insurance companies have to pay for,” she said. “In reality it doesn’t cost the insurance companies anything to provide it. They were happy to and it made the problems go away.”
Fox said in essence the Supreme Court is saying that employees of religious non-profits should be treated the same as employees of small family-owned closely held corporations like Hobby Lobby.
Fox said she cannot see major corporations objecting to a government mandate on religious grounds, however individual major shareholders could attempt to push their agenda involving a corporation.
But, “there is no reason they would want to,” she added. “It would be very problematic for their own business practices to start to get in to that given the diversity of their shareholders and the complicated roles they have to play, especially the big multi-national corporations. Their biggest worry is having shareholders sue them to say ‘follow my religious beliefs.’
Fox said the Supreme Court is sensitive to the fact that companies that have owners with very narrow views to attempt to use the decision for discriminatory purposes.
“You have people who have very fundamentalist beliefs of different religions that are very oppressive to other people,”. Fox said, adding that begs the question, “Can corporations use this religious exemption to protect them in doing very bigoted things?” The Supreme Court tried to be very careful to say that they did not want this to be used as an excuse for discrimination that would be otherwise unlawful, but you may have people try.”