Hobby Lobby Ruling Doesn’t Apply to States

The Supreme Court of the United States just handed down a decision invalidating part of the Affordable Care Act that requires insurance companies to provide contraception as part of any health insurance plan offered. The decision gives an exception to employers who for religious beliefs do not wish to provide certain types of contraception as part of health insurance they offer to their employees.

The Supreme Court did not make the decision based on the Free Exercise Clause of the U.S. Constitution however. Earlier decisions by the Court have ruled out the kind of expansive religious liberty protected in this case. Instead, the Court relied on a law called the Religious Freedom Restoration Act (RFRA) passed in 1993.

The RFRA provided a strict scrutiny standard, requiring narrowly tailored regulation serving a compelling government interest in any case substantially burdening the free exercise of religion, regardless of the intent and general applicability of the law. In the case City of Boerne v. Flores, however, the Supreme Court ruled that Congress cannot pass laws defining rights under the 14th Amendment as applied to states.

States can pass legislation requiring insurance companies to provide contraception as part of all health insurance plans effectively making the Hobby Lobby decision invalid in that state.

Since City of Boerne v. Flores, some states have passed their own version of the RFRA. Nevada almost did so in the 2013 legislative session with Senate Bill 192, Religious Freedom Preservation. That bill died in committee.

As noted by Steven Sebelius on Twitter, a bill draft request (BDR) has already been introduced in the Nevada Legislature called theEmployee Reproductive Health Nondiscrimination Act. It is possible that this legislation may effectively overturn the Hobby Lobby decision in Nevada.