For-Profit Companies Suing Over Birth Control Benefit Aren’t Exempt From Corporate Obligations

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Analysis Law and Policy

For-Profit Companies Suing Over Birth Control Benefit Aren’t Exempt From Corporate Obligations

Imani Gandy

Bottom line: If you're a religious individual, and you decide to enter the marketplace, and you hire people of all faiths, then you have to leave your religious baggage behind and follow the same rules that apply to everyone else.

More than fifty organizations, at least eighteen of which are for-profit companies, are suing the Obama administration, claiming that the birth control benefit in the Affordability Care Act, which requires that employer-provided insurance cover Food and Drug Administration-approved methods of contraception, violates the Establishment Clause of the First Amendment and the Religious Freedom Restoration Act. Absurdly, some of the companies balking at the birth control benefit claim that merely providing health insurance plans that offer contraception (plans underwritten by third-party insurance companies, mind you) violate the religious conscience not just of the owners and operators of the companies, but of the companies themselves—as if the organizations are sentient beings.

Even more absurdly, these for-profit companies believe that, despite being engaged in one of the most secular activities imaginable—making money in the commercial sphere—they should be allowed to avail themselves of the privileges and rights of corporate existence (like limited liability), while ignoring the corporate obligations attendant to those privileges and rights.

The plaintiffs in these lawsuits seek to upend the way corporate behavior in the marketplace is regulated. They demand that their companies’ existence in the commercial realm be on their own terms. Plaintiffs are asking that courts ignore the legal distinctions between corporation and owner and find that requiring a corporation to act in a manner anathema to individual personal religious views is unconstitutional.

Common sense dictates that organizations do not have a religious conscience. Brick and mortar buildings don’t have feelings. Organizations (like certain Catholic hospitals, schools, and charities) may be comprised of individuals who share a common religious set of values, and in those cases the Obama administration has excused them from compliance with the policy. But organizations like Hobby Lobby, for example, are stretching the bounds of credulity with their religious freedom claims, as District Court Judge Heaton’s (a Bush appointee) ruling in the Hobby Lobby case points out:

Roe has collapsed and Texas is in chaos.

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General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors. Religious exercise is, by its nature, one of those “purely personal” matters … which is not the province of a general business corporation.

Individuals who choose to enter the commercial realm cannot expect that their personal religious values will govern their corporation’s activity in the marketplace. This is especially true when, as with the Women’s Health Amendment to the ACA, the regulations opposed by company owners are neutral regulations. As the National Women’s Law Center aptly put it in a recent amicus brief filed in the Hobby Lobby case, such regulations “further the compelling governmental interests of safeguarding public health and promoting gender equality in the least restrictive means possible.”

The U.S. Supreme Court has already said that followers of particular sects are not entitled to special treatment when it comes to commercial activity. In U.S. v. Lee, an Amish employer asked to be relieved of its obligation to pay Social Security taxes on the grounds that both receipt and payment of Social Security benefits violates the Amish faith. The Supreme Court said no, because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.”

This rule makes perfect sense. Otherwise, corporations would be able to avoid all manner of obligations, including the obligation not to discriminate, as Seventh Circuit Judge Illana Rovner pointed out when dissenting from an order in a birth control benefit lawsuit granting a preliminary injunction to Grote Industries. 

Corporations are routinely required to follow regulations that may not comport with the owners’ personal religious views. As Judge Rovner wrote in her dissent in Grote v. Sebelius, that’s the price of doing business:

Requiring a secular business over the religious objection of its owner to do something in the commercial sphere that is required of nearly all such businesses ordinarily does not require the owner to abandon his religious tenets, to endorse conduct or express an opinion that is contrary to his religious beliefs, or to modify his private conduct as a religious observant.

The bottom line is: If you’re a religious individual, and you freely decide to enter the marketplace so that you can make money, and you hire people of all faiths, then you have to leave your religious baggage behind and follow the same rules that apply to everyone else. If you don’t want to be beholden to rules and regulations, then don’t file articles of incorporation papers. It’s that simple.