Academic journal article Journal of Corporation Law

Taking Free Exercise the Second Mile: Why Hobby Lobby Fails to Go Far Enough

Academic journal article Journal of Corporation Law

Taking Free Exercise the Second Mile: Why Hobby Lobby Fails to Go Far Enough

Article excerpt


In 2010, Congress enacted the Patient Protection and Affordable Care Act (ACA).1 The new law is controversial for a variety of reasons.2 Some feel the law goes too far,3 while others feel it does not go far enough.4

In 2011, the controversy entered the religious realm when the U.S. Department of Health and Human Services (HHS), pursuant to the new law, required certain employers to provide insurance coverage for contraceptives that some believe cause abortion. 5 This new requirement created conflict for certain closely held corporations, the owners of which felt they would violate their religious beliefs if they were to support abortion in any way. 6 The most notable of these companies was Hobby Lobby, Inc. (Hobby Lobby).7

In an effort to avoid both the violation of sincerely held religious beliefs and the imposition of millions of dollars in fines, Hobby Lobby and other closely held corporations filed suit against the government.8 Hobby Lobby and other plaintiffs argued that the Religious Freedom Restoration Act (RFRA) protected them from enforcement of the contraceptives mandate because the mandate was a substantial burden on the owners ' free exercise of religion.9 Ultimately, the Supreme Court agreed, and rejected the government 's assertion that RFRA cannot apply to for-profit corporations.10 The Court restricted the reach of its holding to closely held corporations, however, prompting some to ask, what exactly is a closely held corporation?11

This Note examines a slightly different question; specifically, whether there is any compelling reason not to extend the Hobby Lobby ruling to corporations of every size and type. Part II introduces the ACA, RFRA, and the Hobby Lobby case itself. Part III explores the arguments for and against affording RFRA protection to corporations. And finally, Part IV recommends that either the Court, Congress, or both, extend Hobby Lobby12 to all corporations.


This Part first discusses the ACA, its purpose, and some of its effects; this is followed by a summary of the ACA provision that calls for the coverage of preventive health services. This Part next discusses the so-called "contraceptives mandate" established by HHS. This Part then explores RFRA and Hobby Lobby's efforts to avoid compliance with the contraceptives mandate by using that Act as a shield. This is followed by a discussion of whether corporations have Free Exercise rights, and a summary regarding the ambiguity as to the Court's Hobby Lobby ruling vis-à-vis the definition of a "closely held" corporation.

A. The Patient Protection and Affordable Care Act

Enacted on March 23, 2010, the ACA is a law that Congress promulgated in response to the U.S. healthcare crisis.13 The healthcare crisis that catalyzed the law's enactment consisted not of skyrocketing costs alone, but also a reported 50 million Americans who were unable to obtain health insurance as a result of those costs.14 A truly expansive-and, many still insist, unconstitutional15-approach to an admittedly complicated problem, "the ACA is the most extensive reform to the U.S. health care system since the creation of Medicare and Medicaid in 1965."16

Congress passed the ACA, claiming it had the authority to do so pursuant to the Commerce Clause.17 In its original 906 pages,18 the ACA made substantial changes to the way insurance companies-and employers generally-do business.19 Among these sweeping changes are prohibitions against excluding applicants with preexisting conditions;20 restrictions on insurance plan pricing;21 and, most relevant to this Note, mandatory coverage of "preventive health services."22

B. 42 U.S. Code Section 300gg-13, Coverage of Preventive Health Services

The part of the ACA that calls for the coverage of preventive health services is found in U.S. Code, Title 42. The relevant section states: "In general . . . [a] . . . group health plan and a health insurance issuer offering group or individual health insurance coverage shall, at a minimum provide coverage for and shall not impose any cost sharing requirements for," among other things, "preventive care and screenings . …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.