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HLThe United States Supreme Court closed its term last week with three controversial decisions centring on issues surrounding freedom of personal expression.

In McCullen et. al. v. Coakley, Attorney General of Massachusetts, et. al., the Court considered the Massachusetts Reproductive Health Care Facilities Act (the “Act”) which makes it a crime to stand on a public road or sidewalk within thirty-five feet of a reproductive health care facility hence creating “buffer zones” outside of such facilities. The Court held that laws creating these buffer zones impinged on the expression rights of the petitioners who had sought to engage in “sidewalk counselling” with arriving patients in an attempt to give them information about alternatives to terminations.

The Court found that the Act creating the zones “burdened substantially more speech than necessary to achieve the Commonwealth’s asserted interests”.  Critically, the decision centred on the public space access issue.  The Court absented itself from the obligation to apply the stricter scrutiny standard by declining to review the content or viewpoint asserted by those who would access the public space, stating only:

“While the Act may allow petitioners to “protest” outside the buffer zones, petitioners are not protestors; they seek not merely to express their opposition to abortion, but to engage in personal, caring, consensual conversations with women about various alternatives. It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitions’ message”.

The decision does not address what measures would be considered proportionate to address the conflicting concerns of patient safety and freedom of expression.

More controversial was the Court’s 5-4 decision in the group of cases collectively referred to as “Hobby Lobby”.[1] The Patient Protection and Affordable Care Act of 2010 (the “ACA”) requires employers’ group health plans to provide preventative care and screenings for women without cost sharing requirements.  The definitions of those terms were left to the Health Resources and Services Administration (the “HHS”), which included 20 FDA approved contraceptive methods.  Consequences for noncompliance are economic in the form of a $2000 fine per year per employee.  For Hobby Lobby and the other petitioners, such fines could potentially total over $475 million annually.

Religious employers, such as churches, are exempt from this contraceptive mandate under the Religious Freedom Restoration Act (the “RFRA Accommodation”).  Not for profit organisations may also seek exemption from providing coverage for contraceptive services via self-certification on the basis of religious objections they hold. In such cases, contraceptives are available to employees from health insurance providers directly via government subsidies, without imposing any cost-sharing requirements on the employer or its employees. In summary then, the contraceptives are still available to employees but by alternative means, which are triggered by the self-certification procedure.

Hobby Lobby’s case is based on the religious views of the owners of a for-profit corporation, whom believe life begins at conception and that it would violate their religious beliefs to facilitate access to contraceptives. They argue that the RFRA Accommodation should be available to their for-profit corporation as a legal person.

In a nearly 50 page decision, the Court concluded that the RFRA Accommodation is available to closely held for-profit corporations, and that the HHS’s contraceptive mandate substantially burdens the exercise of religion. In effect, the decision finds that closely held for‑profit companies are indistinguishable from their owners and the exercise of those owners’ religious beliefs. Those beliefs, due to the RFRA Accommodation procedure, allow an exemption to Federal law on religious grounds. The ruling also acknowledges that the obligation impacts on the exercise of religion generally.

The decision in Hobby Lobby has elicited substantial commentary and led to further claims being made in relation to the Act. In the four days following the ruling, over 120 not for profit organisations have issued proceedings, many of them arguing the self-certification workaround provided for pursuant to the RFRA Accommodation violates their religious liberty by making them complicit in a process that runs counter to the exercise of their religion.

On 3 July, four days following the Hobby Lobby decision, the Court granted an injunction application in Wheaton College v. Sylvia Burwell, Secretary of Health and Human Services, et. al. Wheaton, a liberal arts college, applied for an injunction to be relieved from its requirements to complete the RFRA Accommodation paperwork, claiming that to do so (which triggers the alternative method of providing care) of itself violates the not for profit’s exercise of religion. The majority of the Court agreed, prompting a scathing dissent by Sotomayor, Ginsburg and Kagan against the extraordinary injunctive relief:

“After expressly relying on the availability of the religious nonprofit accommodation to hold that the contraceptive coverage requirement violates [the RFRA] as applied to closely held for-profit corporations, the Court now, as the dissent in Hobby Lobby feared it might, retreats from that position. That action evinces disregard for even the newest of this Court’s precedents and undermines confidence in this institution”.

Sotomayor went on to add “[t]he Court’s actions in this case … ignore a simple truth: the Government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense. It is not the business of this Court to ensnare itself in the Government’s ministerial handling of its affairs in the manner it does so here”.

How the lower courts will respond to the Hobby Lobby decision, and what further challenges may yet be brought, remains unclear. The decision has already prompted prominent gay rights advocacy groups to withdraw support for a pending bill in Congress which would make it illegal to discriminate in the workplace based on sexual orientation. The groups claim the religious exemption in the bill as currently written, together with the calls for greater permission to discriminate on religious grounds, prompted their decision.