Hobby Lobby attorney: We'd be thrilled to stay out of employees' birth-control choices

With progressives having a meltdown over the relatively narrow result of Hobby Lobby this morning, the attorney for the winning side provided a little reality check outside the court. Lori Windham represented Hobby Lobby’s owners in the court case, and CNN caught up with her outside shortly after the ruling was announced. Windham proclaimed this “a great day for religious freedom,” but when the CNN reporter offered the argument that the ruling allowed employers to get between a woman and her doctor on birth control, Windham bristled:

CNN: We heard the demonstrators today saying, “Look, the employers should stay out of our business,” that this decision will now essentially bring the employer into what should be a very private decision-making process between a woman and her doctor, now that the justices ruled that Hobby Lobby no longer has to cover four types of contraception. What do you have to say to the other side?

WINDHAM: Hobby Lobby would love to stay out of this, and leave this decision to a woman and her doctor. It’s the federal government that told them that they had to be involved and cover these things, even though they violated the Green family’s faith.

No kidding. Windham expertly skewers the “keep your rosaries off of my ovaries” argument in connection with the HHS mandate, which argues simultaneously that birth control is a private choice but that employers should directly foot the bill for it. A truly private choice would be between a woman and her doctor with the woman paying for whatever choice she makes. And that is still the case now, even post-Hobby Lobby, since this case has nothing to do with access to contraception — merely who pays the bill.

The Supreme Court ruling has some interesting language in it, mainly regarding the Religious Freedom Restoration Act (RFRA) that passed on an overwhelmingly bipartisan Senate vote (97-3) and was signed into law by Bill Clinton. HHS had argued that it didn’t apply to corporations, especially for-profit corporations, but the court rejected that argument.



They also found that the mandate provides a “substantial burden”:



In an interesting turn, though, the Court “assumes” that the mandate serves a compelling state interest — but does not find that free access to contraception is a compelling state interest. That may be left for other cases; in this instance, though, even with that assumption the government did not show that they employed the least burdensome method of serving it:





At least at first blush, this seems to be a powerful finding for later cases where the burden might be even more substantial — Little Sisters of the Poor, for instance. It essentially argues that the accommodation shows that the government did have less burdensome ways to satisfy the state interest when dealing with for-profit corporations, assuming it was compelling in the first place, and also assuming that the so-called accommodation relieves the substantial burden. This decision doesn’t actually find either conclusion.  Alito and his majority are basically making the point that HHS didn’t even bother to look for alternate ways to satisfy their interests, and so the court doesn’t even need to address these other issues.

That makes this a great day for limiting governmental power. How the Supreme Court rules on the other open issues later will determine whether this is indeed a great day for the freedom of religious expression. It’s certainly a great day for the RFRA though.