Hobby Lobby case won’t stop blood transfusions

Bloomberg ViewJuly 5, 2014 

Here’s an easy way to cut through the arguments and counterarguments surrounding Monday’s Hobby Lobby ruling from the U.S. Supreme Court: Think back to 2012.

Does the court’s ruling – in which a majority held that Hobby Lobby Stores and other private employers can be exempted from a requirement in Obamacare to cover contraceptives in their health-care plans – represent a terrible blow to women’s rights?

Not really: Women have the same rights they had all through President Barack Obama’s first term. At that time, federal law did not require most employers to cover contraceptives.

Does the ruling mean that employees’ use of contraception depends on the religious views of their bosses? Again, no more than it did in 2012.

Experience should also inform our evaluation of one of the main arguments against the ruling: that it will bring forth lawsuit after lawsuit as Scientologist employers make religious objections to covering antidepressants, Jehovah’s Witnesses balk at covering blood transfusions and so on.

That’s the argument with which Justice Ruth Bader Ginsburg closed her dissent to the decision, along with the warning that ruling on these cases will require courts to judge “the relative merits of differing religious claims.”

This prospect isn’t realistic. For most of U.S. history, it has been just as permissible for employers to refuse to cover antidepressants and blood transfusions as it has been for them to refuse to cover contraceptives. Yet we have seen no titanic social conflicts – indeed, no visible social conflicts at all – over this issue.

As Justice Samuel Alito noted in his opinion for the court, the Department of Health and Human Services made Ginsburg’s argument during the litigation over the case. But it provided no evidence that employer coverage plans excluded these items before the Affordable Care Act was put in place, or that any employers have sought exemptions from having to cover such items.

Let’s say an employer did seek an exemption – under the Religious Freedom Restoration Act that governed the Hobby Lobby decision – to a regulation requiring him or her to cover blood transfusions.

The key questions for a court would be: Does the employer have a sincere religious objection to facilitating a transfusion for someone else? Does the regulation serve a compelling interest? Does it impose a substantial burden on the employer’s beliefs? And is there a way to serve that interest while imposing a lesser burden?

None of those inquiries, performed the same way Alito performs the inquiry in the Hobby Lobby decision, requires passing judgment on whether the religious belief is a sound or compelling one.

There may be a case filed here or there. But nothing in the past or present suggests there will be a flood of litigation about Scientologist health plans. The courts aren’t going to be passing judgment on the wisdom of different religious teachings. And access to blood transfusions will be affected by this decision even less than access to contraception will be.

Ramesh Ponnuru, a Bloomberg View columnist, is a senior editor for National Review, and a resident fellow at the University of Chicago’s Institute of Politics.

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