This week the Supreme Court of the United States delivered judgment in the eagerly anticipated case of Burwell v Hobby Lobby, involving a challenge to a provision of the Patient Protection and Affordable Care Act (known colloquially as ‘Obamacare’). This provision requires nonexempt group health insurance plans (such as that of Hobby Lobby) to include access to all FDA-approved contraceptive methods and sterilization procedures.

The owners of Hobby Lobby objected to their company being required to facilitate access to four of the FDA-approved methods of contraception. They argued that their Christian beliefs dictated that life begins at conception and four of the contraceptive methods took effect after that point. They therefore challenged the contraceptive mandate on the basis that it violated the Religious Freedom Restoration Act (‘RFRA’).

The RFRA prohibits the Federal Government from imposing a “substantial burden on a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government demonstrates that the burden (1) is in furtherance of a compelling governmental interest; and (2) it is the least restrictive means of furthering that compelling interest. This is a test of strict scrutiny and in a 5:4 decision the Supreme Court held that it is one the contraceptive mandate failed to pass.

Delivering the judgment of the court, Justice Alito assumed that facilitating access to contraception was a compelling governmental interest but that the means the Government chose to further it were not the least restrictive available. The reason for this is that the Act itself provides an alternative way of ensuring access to contraception. Rather than making the employer pay for the coverage through its group health insurance plan, the insurance company can be made to shoulder the burden. In order for this to occur, however, the company must submit a form. While at first glance this might seem unproblematic, the issue, as the Government pointed out in its brief, is that the company can simply choose not to submit the form. If the company decides not to submit the form it is no longer under an obligation to provide contraception and neither is the insurance provider. It is plausible to assume that a company will not wish to facilitate access to contraception it finds objectionable by submitting a form, just as it would not wish to do so by paying for it.

The prior question for the court was whether Hobby Lobby and other for-profit entities could invoke the RFRA. It was held that they could on the basis that Congress had intended the statute to provide broad protection for religious liberty. Justice Alito did, however, seek to narrow the scope of the judgment to only ‘closely held corporations’. In future, therefore, only ‘closely held corporations’ may object to laws on the basis that they infringe their rights under the RFRA. So what is a ‘closely held corporation’? This is a corporation that has more than 50% of the value of its outstanding stock owned by 5 or fewer individuals and is not a personal service corporation. A recent study demonstrated that such corporations employ 52% of the American workforce. This leads one to wonder just how narrow the judgment really is.

In her dissent Justice Ginsburg (joined by Justice Sotomayor) objected to the notion that corporations could invoke the RFRA at all. All the court’s liberal justices joined the portion of Justice Ginsburg’s dissent in which she observes that there might be other laws that for-profit organizations object to and which they will now be able to challenge, in particular anti-discrimination provisions. Just as importantly, Justice Ginsburg points out that contraceptive coverage is essential to women’s health and reproductive freedom and that the judgment jeopardizes both of these interests.

Although Justice Alito sought to allay these concerns by emphasizing that the scope of the judgment is limited to closely held corporations, he does not point out that Hobby Lobby itself employs around 21,000 people.  Whilst the passage of time may ultimately vindicate Justice Alito’s assertion that corporations are unlikely to bring religious freedom claims, this should not obscure the immediate impact this judgment has on Hobby Lobby’s female employees. The White House Press Secretary was surely accurate when he stated that, ‘women should make personal health care decisions for themselves, rather than their bosses deciding for them.’