The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means

18 Pages Posted: 1 Mar 2015

See all articles by Edward A. Zelinsky

Edward A. Zelinsky

Yeshiva University - Benjamin N. Cardozo School of Law

Date Written: 2014


In Burwell v. Hobby Lobby Stores, Inc., the U.S. Supreme Court held that, under the Religious Freedom Restoration Act of 1993 (RFRA), closely-held corporations’ employer-sponsored medical plans need not provide forms of contraception to which the shareholders of such corporations object on religious grounds. The question now arises how the President, the Congress and the Departments of Health and Human Services (HHS), Treasury and Labor ought to respond to the Hobby Lobby decision.

The best alternative is to require any employer which objects to providing contraception to fund for their respective employees independently-administered health savings accounts (HSAs) or health reimbursement arrangements (HRAs). An HSA or HRA permits the covered employee to spend employer-provided, pre-tax health care dollars on any medical service the employee chooses without implicating the employer in the employee’s spending decision. The HSA/HRA alternative respects the religious rights of sponsoring employers since, unlike conventional insurance or self-insured health plans, the sponsoring employer’s plan does not provide a menu of choices which frames the employees’ decisions. Simultaneously, the HSA/HRA approach respects the autonomy of employees to spend health care dollars on whatever medical services such employees select including services to which the employer objects.

For RFRA purposes, HSAs and HRAs are analogous to cash wages which the employer pays the employee and which the employee spends as he chooses. Under the HSA/HRA approach, there would be no need for the employer objecting to contraception to certify its objections to anyone. The employer would simply establish an HSA or HRA for each employee to spend as she wishes. Such accounts are the “least restrictive means” by which the federal government can assure women of the ability to obtain contraception which they seek with employer-provided, pre-tax health care dollars without burdening the religious beliefs of employers who object to such contraception. The HSA/HRA response to Hobby Lobby is a compelling compromise as a matter of law and public policy.

Keywords: religion, religious accommodation, constitution, establishment clause, Hobby Lobby, employment

Suggested Citation

Zelinsky, Edward A., The Aftermath of Hobby Lobby: HSAs and HRAs as the Least Restrictive Means (2014). Rutgers Law Record, Vol. 42, 2014/15, pp. 109-25, Cardozo Legal Studies Research Paper No. 449, Available at SSRN:

Edward A. Zelinsky (Contact Author)

Yeshiva University - Benjamin N. Cardozo School of Law ( email )

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