Prof. Esbeck says the decision is more about religious freedom than about the ACA. The decision does not deny women access to contraception. “It really comes down to who has to pay for it.” Esbeck opines that the issue turns on religious freedom and the freedom not to have to pay for something that contravenes religious beliefs.
As to the technicalities of the case, Esbeck feels that the oral argument was “a real disaster” for the Solicitor General. There was wide belief that the Court would rule for Hobby Lobby. The challenge was to narrow the holding enough that five justices would support it. Esbeck lists three things that narrowed the holding:
First, the Court limited the holding to family held or closely held corporations for profit. The crucial factor was that all the owners be “of one mind” as to the religious principles involved.
Second, the contraceptives about which Hobby Lobby was concerned have been characterized (by Hobby Lobby) as abortifacients, and the company’s owners oppose abortion. There is a long federal statutory history of not forcing objectors to support abortion if it is against their beliefs.
Third, the government had already extended an exemption to religious nonprofit organizations. The government did not have a good answer during oral argument of the case as to why it could not extend this same exemption to for-profit companies. Taking all three points together, Esbeck suggests that it adds up to a narrow holding.
As to the “corporation as person” problem, the limitation of the ruling to closely held corporations walks around that problem, in Esbeck’s view. And the case does not really affect the ACA. Esbeck notes that religious groups that supported the ACA were opposed to the contraception portion of the law.
Prof. Carl H. Esbeck joined the faculty of the University of Missouri-Columbia School of Law in 1981 after practicing in the firm of Rodey, Dickason, Sloan, Akin & Robb in Albuquerque, New Mexico. He has published widely in the area of religious liberty and church-state relations. Professor Esbeck teaches Civil Procedure, Constitutional Law, Religious Liberty, Civil Rights, and a Seminar on the Foundations of the American Constitution. The Legal Broadcast Network is a featured network of the Sequence Media Group.