Neil Gorsuch, Hobby Lobby, and the Question of Complicity

Neil Gorsuch may be a soft-spoken and gentlemanly Harvard-educated lawyer’s lawyer.  But his decision in the Hobby Lobby case, 723 F.3d 1114 (10th Cir. 2013), apparently overlooked by most commentators, demonstrates just how much American women have to fear if he is confirmed as a justice on the Supreme Court.

As we know, in Hobby Lobby v. Burwell, 134 S. Ct. 2751 (2014), the Supreme Court determined by a 5-4 majority that for-profit family owned corporations were “persons” who could assert the religious beliefs of their human shareholders to thwart the mandate of the Affordable Care Act (ACA) that all employer-based and individual insurance plans covered under the ACA offer essential preventative services.

Hobby Lobby began when two family-owned for-profit corporations, Hobby Lobby and Mardel, sought a preliminary injunction in an Oklahoma federal district court, contending that they should not be compelled to comply with the ACA’s contraceptive services mandate because the Green family, the owners of these corporations, personally believed that certain of these FDA-approved forms of contraception constituted abortion, in violation of their religious belief that life begins at conception. The district court denied the injunction, and the case was appealed to the United States Court of Appeal for the Tenth Circuit. A plurality of the court held that Hobby Lobby and Mardel, as corporations, were entitled to a preliminary injunction precluding the enforcement of the ACA, ruling that these corporations’ “religious beliefs” trumped the government’s interest in providing preventative health care to millions of Americans under the ACA.

Judge Gorsuch concurred.  After expressing his agreement with the plurality opinion, he then framed the issue of the obligation to comply with the ACA mandate in moral and religious terms: “All of us face the problem of complicity. All of us must answer for ourselves whether and to what degree we are willing to be involved in the wrongdoing of others.” 723 F.3d at 1152 (Gorsuch, J., concurring). Here, the “wrongdoing” Judge Gorsuch was referring to was women’s use of certain forms of contraception that the Greens found to be the equivalent of an abortion.

In essence, Judge Gorsuch found that as long as the Greens’ religious beliefs were sincerely held, their religiously based objections to particular forms of contraception trumped any competing interest the government had in mandating essential health services for people who received their health coverage under the Affordable Care Act.  Indeed, he declared that the Religious Freedom Restoration was “something of a ‘super-statute,’” which must prevail over other legislatively enacted government policies. 723 F.3d at 1157. Judge Gorsuch reasoned that because individual Green family members hold the sincere belief that certain forms of contraception destroy a fertilized egg and that they view this practice as “gravely wrong,” they are faced with a “’Hobson’s choice,’” either to violate their personal religious beliefs by deciding as corporate officers of Hobby Lobby to buy insurance coverage that includes all ACA-mandated contraceptive services or to refuse to afford their employees the mandated insurance coverage.  The Greens contended that they would face a penalty as high as a half a billion dollars annually for failing to comply with the ACA’s employer mandate.

Nowhere in Judge Gorsuch’s opinion is there any discussion of the 13,000 employees of Hobby Lobby, who may not share the religious beliefs of their employer.  If these employees are not offered the insurance coverage mandated by the ACA, they may be unable to exercise their fundamental right to self-determination and informed consent because they cannot afford the contraceptive method that they believe will best protect their interest in economic security, including the ability to engage in family planning that the wealthier Green family surely was able to choose if it wished.

The logical extension of Judge Gorsuch’s reasoning in Hobby Lobby could enshrine in the law any number of conservative religious positions, including the view that life begins at conception or that homosexual activity is prohibited, or that God commands racial separation. If he is confirmed, the Supreme Court is likely to issue many more decisions that undermine the liberty and privacy of ordinary Americans.

-Linda Fentiman