Supreme Court Bldg         The Supreme Court issued two decisions yesterday.  One has implications for state governments as employers, and the other has implications for the Affordable Care Act.

Harris v. Quinn involved the complaint of Harris, mother of a disabled son who, as his caregiver, is compensated through the state of Illinois Medicaid program.  Rod Blagojevich , then governor of Illinois, determined that such Medicaid recipients were employees of the state by virtue of receiving state funds for providing services and thus were compelled under state law to join a union and pay union dues.  Quinn, current governor, expanded the reach of Blagojevich and covered even more caregivers.  Harris objected to these action, arguing that they abridged her First Amendment rights.

The Court had decided in the 1977 Abood v. Detroit Board of Educators case that such “agency” fees were entirely permissible and that an employees’ objection to joining the union was insufficient cause to avoid paying union dues.

The Court yesterday found (5-4) that Harris’s First Amendment rights were violated.  The finding was narrow in scope and did not involve a full reversal of Abood as the unions had feared.  Bluntly put, the majority felt that the worker’s part-time status, in combination with the fact that most are family members caring for other family members, did not rise to the level of employment common among state employees and that they could not be simply conscripted into the ranks of the SEIU by an executive fiat action.

Justice Alito wrote the majority opinion and is known for his dim view of the Abood decision that he regards as flawed (see his earlier opinion in Knox v. SEIU).  While the government unions dodged a bullet this time, I would not be surprised if Harris v. Quinn turns out to be foreshadowing for a later decision involving a fact set better suited to overturning Abood.

The second case Burwell, Secretary of Health and Human Services, v. Hobby Lobby Stores, Inc. originated from a decision by Health and Human Services to determine that contraceptives should be covered under the ACA under the auspices of preventative medical services.  HHS decided to require benefit plans to offer every form of birth control approved by the FDA (twenty in total) including abortifacients (those drugs the can prevent pregnancy post conception).  Hobby Lobby, owned by the Green family, agreed to cover sixteen of the  forms of birth control  but wanted an exception of the four abortifacients.  HHS disagreed and the legal wrangling began.

The Court ruled (5-4) that Hobby Lobby’s rights were violated under the Religious Freedom Restoration Act of 1993 (sponsored by Nancy Pelosi in the House, Harry Reid in the Senate and signed into law by President Clinton).  In particular, the Court found that the government did not meet its duty under the Act to offer the least restrictive means in furthering its interests.   The decision was narrow in its scope, applying only to closely held companies (“mom and pop” as described by Justice Alito) and ONLY to the contraceptive mandate, but large in terms of potential impact in that most workers in the U.S. are on the payrolls of such companies.

Most importantly, this decision reaffirms the presence of a reliable (but thin) majority who believes that citizens do not lose their individual rights when they incorporate.

I expect this will mean different things for different employers.  Those with strong religious commitments (e.g. Hobby Lobby, Conestoga Specialty Woods, Mardel, etc.) that are embedded in their cultures are unlikely to include abortifacients in their birth control array in their employee health plans whereas more secular closely held companies may opt to cover all.  The decision is also clear that companies cannot use the decision as a shield to “cloak illegal discrimination.”  I take this to mean that if your company did not have religion before the decision, it will be looked at skeptically should it find it after the decision.

The Roberts Court, with the exception of the landmark Affordable Care Act case, seems to be shaping up as a court of narrow findings pregnant with implications for future findings.