Having concluded that the closely held corporations can assert RFRA
claims, the Court turned to whether the contraceptive coverage provision
substantially burdens their religious exercise. The Court accepted as true the
owners’ contention, although factually inaccurate, that covering certain
types of contraception violated their religious beliefs because they were
61 The Government did not disagree with that contention, but
argued that connection between the challenged rule and religious objection
was too attenuated to be substantial because the decision to use contraception is made by independent third-parties, i.e., the employees.
the Court assumed that the burden was substantial because the corporations
sincerely believed it was substantial.
63 In her dissent, Justice Ginsburg noted that, although a court must accept as true, factual allegations that religious beliefs are sincerely held, whether government action imposes a substantial burden is a legal conclusion that a court is required to analyze.
The five-member majority also concluded that the contraceptive coverage provision failed the least-restrictive means test. It assumed for purposes of its analysis that the Government had a compelling interest in “
guaranteeing cost-free access to the four challenged contraceptive methods.”
this last prong of the RFRA analysis, the Court opined that the “most
straightforward way” of furthering this interest would be for the Government to pay for the contraception of women working for employers who
object to contraception.
66 The Court did not “rely on that option,” however,
because in its judgment, the Department of Health and Human Services
(HHS) was already using a less restrictive means for some religious nonprofits with religious objections to contraceptive coverage, i.e., the accommodation, discussed above.67 And, thus, the Court held that the contracep-
61. Id. at 19-20. In these and other cases, parties and judges have incorrectly accepted
the characterization of certain types of contraception as abortifacients, prompting medical
and public health organizations to file amici curiae briefs to establish that “emergency contraception approved by the FDA and the Copper Intrauterine Device, CuT380A (“Cu IUD”),
also effective for emergency contraception, are not ‘abortifacients.’” Brief for Physicians for
Reproductive Health et al. as Amici Curiae Supporting Respondents 8, Autocam Corp. v.
Sebelius, 730 F.3d 618 (6th Cir. 2013) (No. 12-2673).
62. Hobby Lobby Stores, Inc., 2014 WL 2921709, at 21.
63. Id. at 22 (“[T]he Hahns and Greens and their companies sincerely believe that
providing the insurance coverage demanded by the HHS regulations lies on the forbidden
side of the line, and it is not for us to say that their religious beliefs are mistaken or insubstantial. Instead, our ‘narrow function . . . in this context is to determine’ whether the line
drawn reflects ‘an honest conviction,’ and there is no dispute that it does.”) (internal citations
64. Id. at 38 (Ginsburg, J., dissenting).
65. Id. at 23.
66. Id. at 24.
67. Id.; but see id. at 42 (Ginsburg, J., dissenting) (stating that “in view of what Congress sought to accomplish,
i.e., comprehensive preventive health care for women furnished
through employer-based health plans, none of the[se] proffered alternatives would satisfacto-