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Originally published July 5, 2014 at 5:05 PM | Page modified July 5, 2014 at 6:25 PM

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Myths and spin fly after Hobby Lobby decision

A closer look at some often-repeated claims about last week’s Supreme Court decision on religious exemptions to contraceptive coverage.


Tribune Washington Bureau

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WASHINGTON — Half-truths and spin from both political parties have quickly come to dominate the debate over the Supreme Court decision on religious exemptions to the rule on insurance plans covering contraceptives.

Both sides want to use the decision to motivate key blocs of voters in close midterm races this fall: religious conservatives for the Republicans, unmarried women for the Democrats. In that battle, accuracy about legal issues takes a back seat.

So here is an effort to sort out some often-repeated claims:

Q: Doesn’t the decision apply to only a few forms of contraception?

A: No. As with most political claims, this one, which has become a favorite talking point for conservatives, starts with a nugget of truth and rapidly moves beyond it. The accurate part is that the families who brought the cases to the high court, one of which owns the Hobby Lobby chain of stores and another that owns a woodworking business called Conestoga Wood Specialties, object to four contraceptive methods. They believe those four, intrauterine devices and so-called morning-after pills, cause abortions by preventing a fertilized egg from implanting in the uterus.

But nothing in the court’s opinion limits the ruling to those methods. Another company could assert a religious objection to five or six or to all types of birth control. Those claims would be just as valid.

“It is not for us to say” that a litigant’s “religious beliefs are mistaken or insubstantial,” Justice Samuel Alito Jr. wrote for the court’s majority.

Q: Aren’t the plaintiffs wrong to believe that IUDs and morning-after pills are abortifacients?

A: That argument, raised by opponents of the ruling, involves a disputed point. Legally, however, it makes no difference.

Most experts say the methods in question usually work by preventing fertilization, not by keeping a fertilized embryo from implanting. But “usually” doesn’t rule out the possibility that the devices might sometimes prevent implantation.

In any case, what matters for the court’s decision is that the people raising the objection have a “sincere” religious belief, not that the belief is scientifically proven.

Q: How can the Supreme Court say that corporations are “persons” with rights?

A: On the left, the idea that “corporations are people,” as Mitt Romney once put it, generates outrage, but it’s hardly new, nor controversial in other applications.

Take a news organization, for example. Like most, it’s a corporation, but few people would argue that its corporate status prevents it from being covered by the First Amendment.

Similarly, even though many medical offices and most hospitals are organized as corporations, police need a warrant before searching medical files because the Fourth Amendment protects corporations just like individuals.

What was new in this case was the question of whether for-profit corporations can assert rights under a 1993 federal law called the Religious Freedom Restoration Act. The five justices in the majority said yes. Two justices, Ruth Bader Ginsburg and Sonia Sotomayor, said no. Two others, Justices Stephen Breyer and Elena Kagan, didn’t take a position because they felt it wasn’t necessary to address it.

Q: Doesn’t the ruling apply only to “closely held,” family-owned companies?

A: No. Hobby Lobby and Conestoga are closely held companies. But the court’s opinion applies to all corporations.

Q: Will the decision deprive tens of thousands of women of coverage for birth control?

A: Probably not. A key point for the justice with the swing vote in the case, Anthony Kennedy, was that the Obama administration already has an alternative way to provide insurance coverage to some women whose employers object to paying for birth control. That alternative should be extended to employees of companies such as Hobby Lobby, Kennedy said.

Under the alternative plan, which covers religiously affiliated nonprofit employers such as charities and schools, the employer certifies that it objects to paying for some or all birth-control devices. At that point, the company’s insurer steps in and provides the same coverage for free.

Q: Won’t the ruling allow religious claims for exemption from all sorts of other laws?

A: Yes, but many of them won’t win. The court’s ruling will allow more companies to get their day in court to assert religious claims for opting out of other laws they don’t like. That will mean a lot of lawsuits.

But the ruling doesn’t say religion holds a trump card that always wins.

Instead, it says that courts need to weigh how much of a burden a particular law imposes on religious belief against the government’s need to achieve the law’s goals. In this case, the majority said the balance tilted in favor of the religious objectors, in part because the government, as Kennedy wrote, had another way to achieve its goal. Often, that may not be the case.



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