Untangling the Reproductive Rights and Religious Liberty Knot

Abstract

Burwell v. Hobby Lobby dramatically changed the landscape of religious liberty protections afforded to corporations. The Supreme Court in Hobby Lobby held that closely held for-profit corporations are entitled to protection under the Religious Freedom and Restoration Act (RFRA) when their sincerely held religious beliefs are contrary to a law of neutral applicability. Holding this in the context of the Affordable Care Act's contraceptive mandate, which requires almost all employer-sponsored health insurance plans to cover preventative women's health care, including contraception, the Court found that Hobby Lobby and Conestoga Wood Specialties were entitled to a religious exemption from the mandate. While the decision in Hobby Lobby was unprecedented, courts around the country have employed similar rationales when claims of religious liberty rights by employers butt up against claims of gender and pregnancy discrimination by employees. Here, we track the parallels between how courts have evaluated this issue in Title VII pregnancy discrimination cases and the same issue in Hobby Lobby. We argue that often courts improperly subsume the employee's personal reproductive and gender discrimination interest into the employer's claim of religious liberty.