Hobby Lobby 2.0: SCOTUS Is Set To Take On Birth Control Again

The issue of birth control will once again be brought before the United States Supreme Court, as the judges have decided to take on the case of Zubik v. Burwell.

The last time the court weighed in on the issue was 2014’s infamous Hobby Lobby decision, in which they voted 5-4 to allow corporations to “exercise their religious freedom” by exempting themselves from the Affordable Care Act’s provision requiring them to provide their employees with insurance that covers birth control. The way this has worked so far is that corporations and religious non-profits and universities can fill out a form saying that providing such insurance conflicts with their religious beliefs.

Once they fill out this form, the government will then work with the insurance companies to figure out a way to provide the employees with birth control coverage independently of the employer.

Zubik takes it a step further, arguing that simply filling out this form violates their religious freedom, because filling it out makes them complicit in their employees gaining birth control coverage by other means. Which, naturally, they disapprove of because they don’t want their employees taking birth control. You know, because that is their business and all.

Of course, this is ridiculous. Part of the reason Hobby Lobby was decided the way it was (which I still disagree with), was due to there being another way for employees to still have their birth control covered without “violating” the religious beliefs of their employer. However, when Ruth Bader Ginsberg wrote in her dissenting opinion that “The court, I fear, has ventured into a minefield,” this is exactly what she was talking about.

The Zubik plaintiffs cite the Religious Freedom Restoration Act, which protects people from complying with federal laws that they believe put a “substantial burden” on their free exercise of religion. However, this doesn’t necessarily mean that you can break any law you want so long as you say it’s your religion. You can’t just go and kill people and say the devil made you do it, and get out of going to jail because you’re a Satanist and it’s your “religion.” The RFRA doesn’t apply to areas where the government has a compelling interest in upholding the law.

Luckily, there is a good chance that the Court will not find in favor of Zubik. As Ian Millhiser at ThinkProgress points out, although Justice Kennedy voted in favor of Hobby Lobby, his decision in that case suggests that he would not side with Zubik. In his opinion on the case, he suggested that he believed that those exercising their religious freedom should not be able to infringe on the rights of others, writing that they may not “unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling.”

However, if the court does find in favor of Zubik, we’re all basically screwed, as it would mean that those negatively affected by someone’s “free exercise of religion” would have no legal recourse to assert their rights. That, friends, is pretty scary.