“The contraception mandate violates the Constitution and federal law by forcing religious organizations to pay fines for the privilege of practicing their faith.”
This is a refrain oft-repeated by lawyers for the more than 40 for-profit companies that have filed lawsuits challenging the birth control benefit, the provision in the Affordable Care Act that requires nearly all insurance policies to cover preventive health-care services for women, including contraception without co-pay or deductible. Plaintiffs in these lawsuits complain that the birth control benefit forces company owners—and, indeed, the companies themselves—to either violate sincerely held religious beliefs (by paying for, providing, facilitating, or otherwise supporting contraception, which they find morally objectionable) or risk paying severe penalties.
Such claims are compelling but, ultimately, untenable. The birth control benefit no more forces employers to violate their religious beliefs than the minimum wage set forth in the Fair Labor Standards Act does. The birth control benefit simply seeks to promote gender equality and women’s public health, and attempts to achieve parity between the cost of health care for women on the one hand, and men on the other. Moreover, it is perfectly constitutional.
Still, approximately two-thirds of the court decisions in these lawsuits we’ve seen so far have found that the claims of for-profit companies have enough merit to warrant granting temporary relief from the law while companies pursue their claims in court. This ascribing of moral values and superiority to corporations is an alarming trend, one which Elizabeth Sepper, associate law professor at Washington University School of Law, describes as “the birth of corporate conscience.”
For-profit companies suing to block the birth control benefit run the gamut, from an arts and crafts retail chain to a Christian book publisher to companies that manufacture heating and ventilation systems. Some are publicly held companies, and some aren’t. Some self-insure, while others provide health insurance through third-party insurance carriers. Despite their differences, however, these plaintiffs are bound by a common effort to demand from courts recognition of corporate religious liberty interests that they believe must be protected from intrusion by the government, and an acknowledgment that corporations exercise religion just as living, breathing humans do. (Or, at the very least, the religious exercise of a corporation’s owners can “pass through” to the corporation itself.) After all, in Citizens United v. Federal Election Commission, the Supreme Court held that corporations are people for the purposes of political speech, so expanding that doctrine for purposes of religious expression seems to be the next logical step—or so these plaintiffs believe.
But, as Professor Sepper points out in her
article “Contraception and the Birth of Corporate Conscience,” the plaintiffs’ efforts raise thorny questions: “How can a business have beliefs, religious or otherwise? What does it mean for a business to hold a faith? How, as courts now ponder, could a corporation exercise religion? How does it show sincerity? Can a single-minded obligation to maximize profits meld with religious devotion?”
The response to these sorts of questions by courts throughout the country has been mixed. In Autocam v. Sebelius, the Sixth Circuit declared that corporations are not people for purposes of the Religious Freedom and Restoration Act (RFRA). In Conestoga Woods Specialties Corp. v. Sebelius, the Third Circuit ruled that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause and therefore cannot engage in the exercise of religion under RFRA, signing on to the district court’s observation that “religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely ‘human’ rights provided by the Constitution.”
In Grote Industries v. Sebelius and Korte v. Sebelius (which are now consolidated), the Seventh Circuit granted plaintiffs’ request for a preliminary injunction, finding that the Kortes run their for-profit construction company “in accordance with their religious beliefs,” thus rendering the mandate a substantial burden on those beliefs. And it found the case for preliminary relief in Grote Industries to be even stronger than in Korte because Grote Industries was self-insured. And in a sprawling ruling, the Tenth Circuit, sitting “en banc” (the entire court), declared Hobby Lobby to be a “religious person” for purposes of free exercise and RFRA claims, observing that “sincerely religious persons could find a connection between the exercise of religion and the pursuit of profit.”
The appellate rulings in Grote Industries and Hobby Lobby, along with similar lower court rulings blocking application of the law to for-profit companies, are baffling because, as Sepper writes in her article, “protecting corporate free exercise … runs counter to our intuitions that individual claims of conscience are morally superior to those of institutional structures.”
Corporations don’t have feelings—they don’t exercise religion the way that human beings do, so why are these claims of corporate conscience in the birth control arena gaining a foothold?
In an interview with Rewire, Sepper provided a chilling answer: “These cases certainly seem to reflect a skepticism on the part of the federal judiciary that reproductive health care is actually health care.”
This skepticism is palpable in some of the court rulings. Courts quibble with the Obama administration’s claims that promoting gender equality and women’s public health is a compelling interest (one of the elements the government most prove in order to justify a substantial burden on religious liberty under RFRA). The district court in Legatus v. Sebelius, for example, stated that it had “no doubt that the Government has an interest in promoting public health as a general matter,” but went on to claim that it was “uncertain that the Government will be able to prove a compelling interest in promoting the specific interests at issue in this litigation.” Those specific interests? Women’s health. Gender equality. Health-care parity.
Courts also look askance at the manner in which the government has chosen to roll out the new complex health-care law. The mandate exempts religiously affiliated employers and employers with less than 50 employees, and doesn’t apply to grandfathered plans. How compelling could the government’s interest be if there are so many exemptions built in to the mandate? The obvious answer is that a policy which seeks gradually to implement the provisions of the Affordable Care Act is not indicative of how important the government considers the interests of regulating public health and furthering gender equality. But many courts aren’t buying it.
Skeptical courts also question whether refusing to provide a particular plaintiff with an exemption from the requirements of the mandate is the “least restrictive means” of advancing the government’s interest (yet another element that the government must demonstrate before it can substantially burden religious liberty under RFRA). Such concerns ignore that, to date, 43 lawsuits have been filed by for-profit companies, and in each lawsuit a particular plaintiff is seeking “just one more” exemption. Moreover, there are countless corporations waiting in the wings to demand their own exemptions. The mandate would be rendered useless if exemptions were handed out to any plaintiff proclaiming a religious right to receive one. And, ultimately, requiring that such complex legislation be immediately enforced in order to satisfy the “compelling interest” element of RFRA as a matter of law would encourage Congress to ignore pragmatic considerations and competing religious liberty interests when implementing new legislation.
Given the demonstrable judicial skepticism about whether or not contraception is health care, it’s easy to understand how discussions about corporate conscience and corporate religious liberty frequently devolve into a yelling match about how women should pay for their own contraception or simply buy it at the drug store.
Such facile arguments ignore that the corporations challenging the birth control benefit are not simply asserting a religious right, but are simultaneously asking to be allowed to infringe upon the religious rights of their employees. “When it comes to asserting corporate religious liberties, we’re not just dealing with one religious liberty right,” Sepper said. “We’re dealing with competing religious liberty rights.”
When we think of religious liberty cases, we think of cases like Abdulhaseeb v. Calbone, in which a Muslim prisoner protested that a prison’s failure to serve halal food infringed upon his religious liberty, or May v. Baldwin, in which a Rastafarian prisoner challenged a policy requiring him to loosen his dreadlocks before medical transport. Those cases involve religious liberties as asserted by one party—the person being refused halal food, or the person being commanded to loosen his dreadlocks. “Religious liberty is thought of as a right that people clearly possess and can claim against the government,” Sepper said.
The problem with the birth control benefit debate is that few are thinking about the competing religious liberty rights of women, leading to what Sepper describes as “an impoverishment of how we think about women’s rights to contraception or rights to abortion as almost being impossible to assert against anyone.” So impossible are these rights to assert that some courts refuse to view the promotion of these rights as a “compelling interest,” as evidenced by the district court’s uncertainty in Legatus. “That’s why I think it’s really important to think of it as a right to religious liberty versus a right to religious liberty, where women’s religious liberty is at risk when their employers can decide whether or not they have access to contraceptive coverage,” Sepper said.
The point is this: Religious liberty is a right that women should be able to claim against their employers too. Women who work at large companies like Hobby Lobby should not be subjected to the religious values of their employers—whether the corporation itself, or the owners of the corporation—when those religious values infringe on women’s religious freedom, and result in the denial of earned employee benefits and the elimination of access to the full range of preventive health-care services authorized by the Affordable Care Act. To permit for-profit companies to wield that much control over the personal decisions of their employees simply relegates women’s health to a status viewed as less important than the purported religious feelings of a corporation. And that takes the Mitt Romney canard that “corporations are people” too far.