Tuesday, November 24, 2020
Suzanne A. Kim (Rutgers School of Law), Commentary on Burwell v. Hobby Lobby, SSRN:
Burwell, et al., v. Hobby Lobby Stores, Inc., et al., decided in 2014, broke ground in its unprecedented articulation of religious person-hood rights for commercial entities, posing challenges to reproductive justice and the foundations of anti-discrimination law. The case addressed whether the Affordable Care Act’s (ACA) contraceptive mandate should yield to a Religious Freedom Restoration Act (RFRA) claim by for-profit corporations objecting on religious belief grounds to providing health insurance coverage for contraception to employees. Concluding that the corporations seeking exemptions were “persons” for free exercise purposes under RFRA, the Court held that U.S. Department of Health and Human Services (HHS) regulations interpreting the ACA contraceptive coverage requirement violated RFRA by substantially burdening the exercise of religion. The Hobby Lobby re-write by Anthony Kreis underscores the far-reaching implications of the original decision by connecting the reproductive health access questions at stake to the day to day conditions in women’s lives and broadly systemic impacts of the Hobby Lobby decision for marginalized communities. In so doing, the rewritten opinion sets the stage for deeper consideration of Hobby Lobby’s challenge to the health and well-being of women, communities of color, lower-income communities, and other marginalized groups.