Law Prof: Hobby Lobby Case a 'Maybe' for Future of Religious Liberty

Tuesday, 01 Jul 2014 08:34 PM

By Sean Piccoli

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The Supreme Court's decision exempting a family-owned business from Obamacare's birth-control coverage mandate is both small-scale and potentially bigger in its future impact than anybody realizes, Harvard Law professor Mark Tushnet told Newsmax TV on Tuesday.

A lot depends on what other people with religious convictions— and lawyers — decide the high court's ruling means, Tushnet, a former law clerk for Supreme Court Justice Thurgood Marshall, told "MidPoint" host Ed Berliner.

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Tushnet said Burwell v. Hobby Lobby Stores Inc. "looks like a rather limited opinion that won't substantially interfere with the overall operation of the Affordable Care Act or even probably limit the access of employees . . . to the kinds of contraceptives that Hobby Lobby objects to."

Tushnet said Justice Samuel Alito, writing for a 5-4 majority, took pains to keep the opinion narrow.

"It says we're dealing only with contraception, not with blood transfusions or vaccinations," said Tushnet. "It says we're dealing only with a closely held family corporation, not with a publicly held corporation.

"And all of that is right. But it's also true that the legal analysis that he offers is something that people with religious objections to vaccinations might be able to use effectively, and that large, not-family-owned corporations might be able to use effectively," he said. "We just don't know from the opinion."

He said another two to three years' worth of related lawsuits and rulings will come and go "before we actually know what the contours of the decision and its effects are."

More clear, said Tushnet, is the relatively small hit Obamacare took from the justices carving out a religous-conscience exception to the rule that all employer-provided medical insurance plans include coverage for contraceptives.

"It's not a major blow," said Tushnet. "It'll be relatively easy for the administration, through regulations, to work around [the ruling]. There are more important or serious challenges pending to the overall Affordable Care Act . . . in the lower courts."

He said the Department of Health and Human Services is probably already busy writing a new, Hobby Lobby-friendly version of the contraception mandate.

"Then there will be more litigation about that," he said.

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