Religion and medicine have historically gone hand in hand, but increasingly have come into conflict in the U.S. as health care has become both more secular and more heavily regulated. Law has a dual role here, simultaneously generating conflict between religion and health care, for example through new coverage mandates or legally permissible medical interventions that violate religious norms, while also acting as a tool for religious accommodation and protection of conscience. This conference identified the various ways in which law intersects with religion and health care in the United States, examined the role of law in creating or mediating conflict between religion and health care, and explored potential legal solutions to allow religion and health care to simultaneously flourish in a culturally diverse nation.

1. Bosses in the Bedroom:
Hobby Lobby, Religious Employers, and the Future of
Employer-Sponsored Health Care
May 9, 2015
Holly Fernandez Lynch, J.D., M.Bioethics – Petrie-Flom Center
Gregory Curfman, M.D. – Harvard Health Publications

2. 2

3. Caveats and Spoiler Alerts
1. We are strong supporters of women’s reproductive freedom…but
Hobby Lobby reached the right balance…IF we are right that…
2. The accommodation offered to religious non-profits (and likely
now for-profits too) is adequate and should be upheld
3. Protecting religious freedom is important (albeit not to the
exclusion of other important goals), even in business
4. We have a problem with bosses in the bedroom because we put
them there
5. These problems can be avoided by eliminating employer
involvement in health insurance
6. There are some trends in that direction, but don’t hold your
breath…3

4. The Contraceptives Coverage Mandate
• ACA: Employers with 50 or more full-time employees
must offer health insurance coverage
• Plans must provide coverage without cost sharing (co-
pay or deductible) for “preventive” services for women
• HHS definition includes all FDA-approved
contraceptive methods and sterilization procedures
• Public health reasons – prevent unintended
pregnancies and remove barriers to access
• Equality reasons – prevent women from having to
bear costs of contraceptives, and protect women’s
opportunity for equal participation in the workforce
4

5. Conflict of Conscience
• Employers must offer plans
that provide contraceptive
services without any cost to
beneficiary, or face a large
penalty
• But some employers have
religious objections to
contraceptives
• The issue here is one of
complicity (cannot fund or
even facilitate access to
contraceptives)
5

6. Government Response
• Not covered – fewer than 50 employees or grandfathered
• Mandate doesn’t apply at all (no access guaranteed)
• Exemption – churches (even if they provide services to or
employ people of different faiths)
• Mandate doesn’t apply at all (no access guaranteed)
• Accommodation – (1) non-profit, (2) holds itself out as
religious, (3) opposes contraceptives coverage for religious
reasons, and (4) and self-certifies as meeting these criteria
(or notifies gov’t of objection)
• Employer off the hook, insurers step in (access preserved)
• No Exemption – before Hobby Lobby, all other employers
(secular and/or for-profit), regardless of relig. objection
• Mandate applies (access preserved)6

7. Federal Protections for Religious Freedom
• 1st Amendment Free Exercise Clause
• Employment Division v. Smith (1990): neutral laws of general
applicability do not violate Free Exercise, even if they burden religion, so
long as they have a rational relationship to legitimate gov’t interest
• Religious Freedom Restoration Act (RFRA)
• Explicit Congressional response to Smith
• Fed gov’t may not (1) substantially burden (2) a “person’s” religious
exercise, unless (a) in furtherance of a compelling interest (b) using the
least restrictive means
• Many states have similar statutes
7

8. Source: The Beckett Fund for Religious Liberty, HHS Mandate Information
Central, 4/30/15, http://www.becketfund.org/hhsinformationcentral

9. Litigation by For-Profit Employers
• Secular companies w/ religious owners à lots of litigation
because must fully comply regardless of owners’ objections:
• Pay for objectionable coverage OR
• Pay penalty for failing to provide such coverage OR
• Pay penalty for not providing any coverage at all
• Circuit split à SCOTUS opinion in Hobby Lobby (June 2014)
• Given the available alternatives, the contraceptives coverage
mandate violated RFRA as applied to closely-held, for-profit
corporations with religious objections
• These employers do not have to comply
• Our take: SCOTUS got it right
9

10. Burwell v. Hobby Lobby et al.
• Are for-profit corporations persons under
RFRA? Yes.
• RFRA/Free Exercise previously found to cover
non-profit corporations, so corporate status is
not the problem
• No pre-Smith precedent recognizing for-
profit’s qualification for religious exemption
from generally applicable law, but RFRA
intended to offer broad protection
• Our take:
• Plausible legal analysis in light of statutory
ambiguity
• Correct normative result because get to
balancing test10

11. Burwell v. Hobby Lobby et al.
• Can for-profit corporate persons exercise religion? Yes.
• RFRA indisputably covers non-profit corporations, so corporations
can exercise religion
• RFRA indisputably covers individuals, even when they seek to make
a profit, so for-profits can exercise religion
• Recognizing corporate exercise of religion protects autonomy of
individual members of both non-profit and for-profit corporations
• Unlikely that large or publicly-traded for-profits would try to exercise
religion (and irrelevant to this case)
• Our take:
• Same as above
11

12. Burwell v. Hobby Lobby et al.
• Does contraceptives mandate impose substantial burden? Yes.
• Requires owners to engage in conduct that violates sincere religious
beliefs, or face large fines
• Irrelevant that employee decides to use contraceptives – mandate still
violates employers’ religious beliefs because it requires complicity (helping
pay, arrange, or contract for those services)
• Relevant burden: size of legal punishment (not attenuation between belief
and legal requirement, i.e., whether you must violate beliefs “only a little”)
• Our take:
• Correct to care about complicity as much as direct violation of beliefs
• Consequences for believers are real
• Outsiders cannot determine how “badly” one’s beliefs are violated
• Better to focus on severity of consequences for violating law12

13. Burwell v. Hobby Lobby et al.
• Are there less restrictive alternatives?
• Assumes there is a compelling government interest, BUT…
• Gov’t could assume cost of contraceptives when employers object
• OR extend HHS accommodation offered to religious non-profits
• Although didn’t explicitly hold accommodation acceptable yet…
• Our take
• Good compromise – access + conscience are both preserved here
• Least restrictive alternative requirement is protective of religious
belief, but demands consideration of impact on government’s
interests (here, access for women) - didn’t ignore repro freedom
• Other situations would have a different balance of compelling
interests and available alternatives (parade of horribles)
13

14. New Proposed Rules, 08/27/14
• In response to Hobby Lobby, HHS proposed to
amend the definition of eligible organization
for accommodation to include closely held for-
profit entities with religious objection to
providing contraceptive coverage
• As of now, for-profit employers with religious
objections are completely exempted (due to
SCOTUS ruling)
• Temporary access problem until rule is finalized
14

15. Litigation by Religious Non-Profits
• They are accommodated, what’s the problem?
• They want exemption, not accommodation,
because complicity concerns remain
• Just deputizing someone else to engage in
objectionable activity – employer remains in the
causal chain
• Concerns about retaining contracts with insurance
companies that provide contraceptives coverage,
even if religious employer is not paying for it
• For-profits (soon to be accommodated after
Hobby Lobby) could make the same arguments
• Lots of cases pending
15

16. Is the accommodation enough under RFRA?
• Are religious objectors (non-profit or for-profit) entitled to exemption?
• SCOTUS hasn’t weighed in – waiting on Circuit Courts post-Hobby Lobby
• Our take: No, but we’ll see…
• Hobby Lobby established that there is a substantial burden
• Punishment remains severe, even if violation of religious belief is more attenuated
• It is not for anyone else to say there is no complicity – if objectors view their
beliefs as violated, that should be respected
• BUT…there is a compelling interest in preserving free access to
contraceptives
• Gaps exist, but government can move incrementally
• AND…
16

17. Is the accommodation enough under RFRA?
• There is no less restrictive alternative to accommodation
• Could government do it? No.
• If the government stepping in is really an alternative, RFRA’s balance would
always result in a win for the objector – what limits?
• Government wouldn’t reap cost saving benefits that insurers would
• What about employer funding of health savings accounts? Not good enough.
• Seen as a penalty (if applied only to objectors), or too broad (if to all employers)
• Employers could still exclude contraceptives coverage in their affiliated plan –
added burden on employees, even if paid for
• Windfall for some employees, potentially not enough for others
• Existing accommodation not perfect, but all RFRA requires:
• Minimizes complicity to the extent possible
• Satisfies government’s interests17

18. RFRA’s Reasonable Balance
• Religious liberty and reproductive freedom are BOTH
important goals
• Can be in favor of the both – not inconsistent
• Should strive to advance them both
• Protections for religious liberty and reproductive
freedom are NOT always a zero sum game
• Can sometimes avoid violation of religious beliefs AND
reasonably preserve access to contraceptives
• Hobby Lobby was not necessarily anti-woman
• Shouldn’t always look for a conflict and a trump – in a
nation seeking diversity and tolerance, look for
compromise first
18

19. RFRA’s Reasonable Balance
• Best compromise: advance both interests by insisting that
religious freedom be infringed only when absolutely necessary
given the impact of accommodation on third parties and
available alternatives
• When both sides can be accommodated, why force one to lose?
• Individuals or corporations, profit-seeking or philanthropic, direct or
attenuated violation of religious beliefs – if we can avoid conflict, we
should try!
• Religious freedom entails allowing believers full engagement with
the community and possibility of economic success while adhering
to religious beliefs…to the extent possible
• If dual accommodation not possible (e.g., access denied or
discrimination would occur), only then trump religion
19

20. Businesses with a Conscience
• Contrast anti-Hobby Lobby response with the
intensifying calls for corp. social responsibility
• Business is not just about profit
• Businesses are deemed to have moral
responsibility and agency - expected to avoid
complicity with immoral or illegal behavior
• Can we draw a clear line re: what sort of
corporate conscience is acceptable?
• Probably don’t want to wash conscience out of
business, even if it results in some businesses
objecting to generally applicable laws
• But definitely must consider third party burdens
20

21. The Real Problem Hobby Lobby Laid Bare
• The problem here is NOT corporate conscience
• The problem is bosses in the bedroom – but we put them
there through employer-sponsored health insurance
• Can/should we do anything about it?
21

22. Employer-Sponsored Health Insurance
• Accident of history
• WWII wage controls, but benefits not subject to those limits
• Tax exemption for employer and employee contributions for
employer-sponsored health insurance
• ACA entrenched through employer mandate (while extending
parallel system of coverage)
• Pros?
• Employees are generally satisfied, most wouldn’t surrender
health benefits for higher wages, some lack confidence in
ability to choose best plans on their own, large employers can
negotiate lower premiums, some efficiencies, gives employers
incentive to promote employee health
• But many of these benefits could be achieved in other ways
22

23. Employer-Sponsored Health Insurance
23
• Cons
• If health insurance is a benefit, it looks like a privilege, not a
right
• Employees ultimately pay in the form of lower wages (makes
religious limits on coverage more troublesome)
• Tax exemption is costly to feds/states
• Employer interest in employee health (wellness programs)
may be intrusive
• Risk pools based on employer may not be optimal
• Allows these conflicts of conscience to arise re
coverage!
• Nail in the coffin?

24. Moving Away from Employer Involvement?
• ACA’s Cadillac tax – partial elimination of tax
exemption for health insurance benefits
• 2018: employers will have to pay 40% excise tax on most
expensive employee health plans
• Many employers are trying to avoid the hit – shifting
employees to less expensive plans or the Exchanges
• Probably won’t spell the end of employer-sponsored
health insurance entirely
• Would need more extensive reduction in tax exemption
• Lack political will to move away fully
• Until then, employers retain an opening into employee health –
conflicts will remain
24

25. Conclusions
• Hobby Lobby result was not extreme –
appropriate balance
• Parties challenging accommodation are
likely to lose – no better alternative
• Compromise is the best outcome
• Corporate conscience is generally
desirable
• Wrong focus so far: not pushing religion
out of business, but rather push employers
out of health care
25

26. 26