The dueling opinions of Justice Alito and Justice Ginsburg in Hobby Lobby were stark, in their focuses. The former focused virtually entirely on the statutory rights afforded by RFRA to the employers. The latter, focused almost entirely on the “rights” of the employees. I put scare quotes around the word “rights” because it isn’t clear, precisely, what the Affordable Care Act does in relation to RFRA. Reflecting this, in various places, Justice Ginsburg refers to them as “rights,” “interests,” and “benefits.”

Justice Alito’s opinion refers again, and again to the rights of the “employers” and “men and women” (stress on women) “who wish to run their businesses”:

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies for- feited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprie- torships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. …

The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price—as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies. If these consequences do not amount to a substantial burden, it is hard to see what would.

In contrast, he only speaks of the “employees” have “access” to these products.

There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of reli- gious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non profit corporations still have access to insurance coverage without cost sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.

One of the only instances where Alito expresses any “empathy” for the employees, is out of a concern that the employer will drop coverage and put them on the Obamacare exchanges.

We doubt that the Congress that enacted RFRA—or, for that matter, ACA—would have believed it a tolerable result to put family-run businesses to the choice of violating their sin- cerely held religious beliefs or making all of their employees lose their existing healthcare plans.

And Alito even calls out RBG, for forcing additional burdens on the female employees who would now have to sign up for an additional program on HealthCare.gov.

Ironically, it is the dissent’s approach that would “[i]mped[e] women’s receipt of benefits by ‘requiring them to take steps to learn about, and to sign up for, a new government funded and administered health benefit,’” post, at 28, because the dissent would effectively compel religious employers to drop health- insurance coverage altogether, leaving their employees to find individual plans on government-run exchanges or elsewhere. This is indeed “scarcely what Congress con- templated.” Ibid.

Now that is an “undue burden!” I suspect that line by RBG’s jabot curl up.

Even the moral dilemma focuses entirely on the employer’s religious beliefs. Access to contraception does not figure in this dynamic.

The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.34

34 See, e.g., Oderberg, The Ethics of Co-operation in Wrongdoing, in Modern Moral Philosophy 203–228 (A. O’Hear ed. 2004); T. Higgins, Man as Man: The Science and Art of Ethics 353, 355 (1949) (“The general principles governing cooperation” in wrongdoing—i.e., “physical activity (or its omission) by which a person assists in the evil act of another who is the principal agent”—“present troublesome difficulties in application”); 1 H. Davis, Moral and Pastoral Theology 341 (1935) (Cooperation occurs “when A helps B to accomplish an external act by an act that is not sinful, and without approving of what B does”).

As I noted in this post, the so-called “exemption” only operates because because HHS imposes a burden on the insurer, and then reduces a fee in the amount of that burden. Eventually the taxpayer picks up the bill. So it is hardly without any “net economic burden.”

In a footnote, Justice Alito address directly what burdens are imposed on “third parties” (not even “employees”):

In a related argument, HHS appears to maintain that a plaintiff cannot prevail on a RFRA claim that seeks an exemption from a legal obligation requiring the plaintiff to confer benefits on third parties. Nothing in the text of RFRA or its basic purposes supports giving the Government an entirely free hand to impose burdens on religious exercise so long as those burdens confer a benefit on other individuals. It is certainly true that in applying RFRA “courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter v. Wilkinson, 544 U. S. 709, 720 (2005) (applying RLUIPA). That consideration will often inform the analysis of the Government’s compelling interest and the availability of a less restrictive means of advancing that interest. But it could not reasona- bly be maintained that any burden on religious exercise, no matter how onerous and no matter how readily the government interest could be achieved through alternative means, is permissible under RFRA so long as the relevant legal obligation [ACA] requires the religious adherent to confer a benefit on third parties. Otherwise, for example, the Government could decide that all supermarkets must sell alcohol for the convenience of customers (and thereby exclude Muslims with religious objections from owning supermarkets), or it could decide that all restaurants must remain open on Saturdays to give employees an opportunity to earn tips (and thereby exclude Jews with religious objections from owning restaurants). By framing any Government regulation as benefiting a third party, the Government could turn all regulations into entitle- ments to which nobody could object on religious grounds, rendering RFRA meaningless. In any event, our decision in these cases need not result in any detrimental effect on any third party. As we explain, see infra, at 43–44, the Government can readily arrange for other methods of providing contraceptives, without cost sharing, to employees who are unable to obtain them under their health-insurance plans due to their employers’ religious objections.

The focus is on excluding employers, not employees, from the “economic life of the Nation”:

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for in- stance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.

Justice Kennedy likewise addresses the female employee’s interest, but this does not factor in his calculus:

The accommodation works by requiring insurance companies to cover, without cost sharing, contraception coverage for female employees who wish it. That accommodation equally furthers the Government’s interest but does not impinge on the plaintiffs’ religious beliefs.

The balance is between the government’s law, and Hobby Lobby’s religious beliefs. Though, at the end of his opinion, Justice Kennedy turns to the interests of employees:

Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion. Yet neither may that same exercise unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling. In these cases the means to reconcile those two priorities are at hand in the existing accommodation the Govern- ment has designed, identified, and used for circumstances closely parallel to those presented here.

Justice Ginsburg, from the outset of her opinion, makes the issue clear–the religious “right” (you can read that either way) is imposing a burden on the rights of women.

Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt- outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.”

…

In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ.

Justice Ginsburg, at various points, describes the employees rights in different manners. Here, she refers to them as “significant interests,” with a nice citation to Chafee:

The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527, 565, 85 P. 3d 67, 93 (2004) (“We are unaware of any decision in which . . . [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “‘[y]our right to swing your arms ends just where the other man’s nose begins.’” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 932, 957 (1919).

Here they are “benefits.”

A “least restrictive means” cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets.

Later RBG calls them “rights.”

21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at 37 (internal quotation marks omitted), but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See supra, at 7–8; infra, at 27.

RBG would focus not only on the statutory rights of the employees to contraception, but their religious beliefs, or lack thereof, and how Hobby Lobby is imposing on their beliefs.

The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without refer- ence to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health haz- ards employees who do not subscribe to their employers’ religious beliefs.

…

Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi- cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ- er’s] decision or action.” Grote v. Sebelius, 708 F. 3d 850, 865 (CA7 2013) (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub- stantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician she consults.

In the end, Hobby Lobby’s imposition on the workers is dispositive.

No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra- ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so.

I’ll flashback to a post I wrote in January about the ACA’s new baseline, and the relationship between the employer, employee, and the government in this Post-ACA world.

Before the ACA, arguably, the relationship was only that between the employer and the employee. No employer was required to give health insurance to employees, so they could choose to do so in whatever manner they sought. No longer. The government has an important stake here. And when they are operating, through subsidized benefits, they can dictate certain terms. To Fishkin, this helps to resolve the contraceptive mandate issue. These healthcare benefit are no longer derived merely from the employer, but are seen as an entitlement (a right?) required by the ACA itself.

The dissent was written in the Post-ACA world, where the rights of the employees clashed with the rights of the employers. The majority barely conceded employees had any rights. It is helpful to explore the way that the Justices discussed these competing factors, or not at all.