The Satanic Temple, Scott Walker, and Contraception: A Partial Account of Hobby Lobby's Implications for State Law

Abstract

Reaction to the Supreme Court's opinion in Hobby Lobby v. Burwell was swift and extreme from almost all quarters. Members of the Satanic Temple, a religious group focused on personal autonomy, individual freedom, and ethical action, announced that they would henceforth be objecting to so-called “informed consent” statutes in the abortion services context. Wisconsin Governor Scott Walker’s administration, on the other hand, announced that he would no longer be enforcing Wisconsin's contraceptive equity law because it was “preempted” by the Supreme Court's decision. In this Article, I demonstrate that Scott Walker’s administration and the Satanic Temple have more in common than it might superficially appear. In fact, there are three common threads that tie their (seemingly diametrical) efforts together. First, both Scott Walker’s administration and the Satanists read Hobby Lobby too broadly. Rather than creating an era of religious exemptions on demand, Hobby Lobby should be read to have a limited impact on state law, even as persuasive authority. Second, both Scott Walker’s administration and the Satanists fail to appreciate the continuing relevance and impact of many other state and federal laws that continue to provide protection for reproductive rights, including contraceptive access. Third, Scott Walker’s administration and the Satanists share a common strategy of attempting to use claims of religious objection to regulation affecting women’s reproductive rights as a tool for political mobilization of their respective – and antithetical – political communities. In this, however, they are closer to the mark: Hobby Lobby does open up new possibilities for claims of exemption. Politically conservative exemptions have been well-represented in the social, political and legal discourse around the Hobby Lobby fallout. But what has been less appreciated is that however open the regime is for culturally conservative religious objections, it is equally open for progressive religious objections as well. In tracing these three common threads between SW and the Satanists, the purpose of this Article is both descriptive and analytic. Analytically, it seeks to unearth the serious point behind the Satanists seemingly facetious accommodation campaign: conservatives do not have a monopoly on accommodation. Progressives, too, can look to religious objection claims under RFRA as a means of effecting change in the legal system. For these efforts to be effective, however, we have to be clear – descriptively – about what Hobby Lobby does and does not do.

This Article explores these questions in four parts. In Part I, it provides a brief refresher on RFRA, Hobby Lobby, and Wheaton College. In Part II, it uses the lens of the Walker Administration’s inaccurate understanding of preemption and RFRA to maps the overlapping regulatory regimes requiring insurance coverage of contraceptives and analyze the implications of the Hobby Lobby decision. In doing so it demonstrates that state-mandated contraceptive coverage continues in force even for religiously-affiliated organizations and closely-held corporations that might be eligible for a religious accommodation from the ACA’s contraceptive coverage requirement. In Part III, using the lens of the Satanic Temple’s “exemption” form, it outlines the obstacles to DIY exemption or accommodation efforts. In Part IV, it explores the underlying idea that individual citizens may make religious objections to the law for progressive purposes, focusing on how such objections might operate when levied against state limitations on the exercise of reproductive rights and access to reproductive health care.

Keywords: reproductive rights, contraception, first amendment, free exercise, religious accommodation, ACA, affordable care act, contraceptive coverage requirement, contraception mandate, religion and the law, contraceptive equity