Hobby Lobby Decision Is A Potential Slippery Slope
By Kluger, Kaplan, Silverman, Katzen & Levine, P.L. July 1, 2014
The Supreme Court’s decision is limited insofar as it only applies to “closely held business.” However, that limitation is deceiving since many large employers qualify as “closely held” based upon their ownership structure, such a Hobby Lobby. The decision is a potential slippery slope as it now opens the door to allowing employers to become involved in private medical issues such as fertility, birth control procedures (such as vasectomy or tubal ligation), psychiatric care, and blood transfusions. If a private employer’s religious beliefs can dictate the healthcare its employees receive, all kinds of care and procedures, some possibly life-saving, may be implicated. Also, noticeably absent from the Hobby Lobby opinion is any meaningful discussion about other uses for birth control pills beyond preventing conception. If the pills are medically necessary for another use, can an employer refuse to cover them? How deep can an employer delve into its employees’ personal medical history to glean this information? The Supreme Court has also created a slippery slope for women who have children out of wedlock. If this is inconsistent with an employer’s religious beliefs, can the employer refuse to pay for prenatal care, or refuse to hire that person at all? What about care for the newborn baby? The holding in Hobby Lobby could potentially impact not just the Affordable Care Act, but other federal laws such as the Pregnancy Discrimination Act. The full implications and breadth of the Supreme Court’s holding has yet to be explored. All of these issues and many others will surely be in debate as the impact of the highest court’s ruling is felt on courts nationwide. For these reasons, employers should consult with an employment attorney to better understand the impact of this decision on their businesses.
Michael T. Landen is a partner with Miami-based Kluger, Kaplan, Silverman, Katzen & Levine. Landen focuses his practice on commercial litigation and labor and employment law.