Kara Loewentheil (Columbia Law School) has posted Satanists, Scott Walker, & Contraception: A Partial Account of Hobby Lobby's Implications for State Law (Harvard Law & Policy Review, Vol. 9, No. 1, 2015, Forthcoming) on SSRN. Here is the abstract:
Reaction to the Supreme Court's opinion in Hobby Lobby v. Burwell was swift and vociferous from almost all quarters. The Satanists, for instance, announced that they would henceforth be objecting to so-called "informed consent" statutes in the abortion services context, and made available an online form for anyone, Satanist or otherwise, who wanted to claim a religious exemption from being required to comply with the requirements of such statutes (which usually include waiting periods, provision of particular information, and compelled speech by the doctor, and sometimes also include mandatory ultrasounds or other procedures). Scott Walker, on the other hand, announced that he would no longer be enforcing Wisconsin's contraceptive equity law because it was "preempted" by the Supreme Court's decision. Neither interpretation of the case comes close to the mark. The confusion about the reach and scope of Hobby Lobby is of tremendous significance as state legislatures, courts, administrative agencies and citizens begin to grapple with its consequences, particularly in states where state laws governing religious exemptions are modeled on or interpreted under federal precedent. These questions are live and in flux – even as the Department of Health and Human Services begins issuing proposed and interim regulations governing the accommodations process, some of the not-for-profit plaintiffs claiming exemptions under the Religious Freedom Restoration Act have made clear that no accommodation will satisfy their concerns (and the same may be true for some of the for-profit businesses objecting as well).
This Article has two main aims. First, it maps the overlapping regulatory regimes requiring insurance coverage of contraceptives and analyzes the implications of the Hobby Lobby decision in order to demonstrate that state-mandated contraceptive coverage continues to operate even for religiously-affiliated organizations or closely-held corporations that might be eligible for a religious exemption from the Affordable Care Act's regulations under the Supreme Court's interpretation of the Religious Freedom Restoration Act in Hobby Lobby and Wheaton College, even in states with their own religious exemption statutes. Thus, in Part I, I survey the existing landscape of state contraceptive equity laws and religious exemption law to produce a taxonomy of the different types of contraceptive equity laws and religious exemption laws that might bear on questions of contraceptive access. I then provide a brief overview of the challenges to the Affordable Care Act's contraceptive coverage requirement and explain the potential gaps in coverage and how contraceptive equity statutes might play a role in bridging such gaps.
Second, the Article explores the underlying basis of the Satanists' superficially silly claim: the idea that individual citizens may claim religious exemptions for progressive purposes, particularly in the realm of state limitations on the exercise of reproductive rights and access to reproductive health care, and outlines some preliminary thoughts about the challenges and possibilities of this approach. Thus in Part II I flesh out the legal implications of the Satanist's claim while also suggesting more productive avenues for progressive leverage of religious exemptions. Ultimately, I conclude with a call for other scholars and advocates to join me in considering these questions more fully in future endeavors.