Today the US Supreme Court will hear oral arguments in the case in which two private non-profit companies Hobby Lobby and Conestoga Wood Specialties are claiming that the health insurance plans they provide to their employees should not have to provide contraceptive coverage if doing so violates the religious beliefs of the companies’ owners.
This case has aroused a great deal of interest. On a political level, it challenges a key requirement of the Affordable Care Act. On a legal level, it represents an extraordinary expansion in the degree to which corporations can be considered persons and entitled to the rights normally granted only to real people.
In this case, these two private, for-profit companies are arguing that the provisions of the Religious Freedom Restoration Act of 1993, that says that any government action that impinges on a person’s religious freedom must have a ‘compelling interest’ and no other less restrictive choice of action to achieve its ends, should also be extended to cover companies as if they were persons.
Lyle Denniston at SCOTUSblog explains what is at issue:
[T] Court will be focusing only on whether the pregnancy-related care coverage can be enforced against profit-making companies — or their individual owners, when that is a very small group — when the coverage contradicts privately held religious beliefs.
It is already clear, of course, that individuals — whether they own businesses or not — do have religious beliefs that the government may not try to regulate. But it is not yet clear, and these cases will test the issue, whether they have a right — constitutional or based on a 1993 federal law — to rely upon those beliefs in refusing to provide a kind of health care coverage that they say violates the tenets of their faith.
In other words, can the religious beliefs of the owners of private, for-profit companies somehow pass through to the company itself, so that essentially the company can be considered an extension of the owners?
Elizabeth Wydra has an excellent review of what today’s cases represent, concluding that “accepting the claims of Hobby Lobby and Conestoga Wood would mark an unprecedented departure from longstanding principles of constitutional jurisprudence and corporate law.”
Marty Lederman argues that that there are two major features about this case. The first is that the companies are “seeking a type of religious exemption that has virtually no precedent in the history of free exercise and RFRA adjudication.”
Of course, the fact that no court has ever afforded a for-profit employer a religious exemption at the expense of its employees does not necessarily mean that there should never be such a case. But if the Court were to do so here, it would surely be a groundbreaking departure from the judiciary’s (and Congress’s) historical practice, one that could pave the way for religious exemption claims by large commercial enterprises with respect to many other statutes, including nondiscrimination requirements, zoning regulations, taxes, and so on.
The second is that there is no “contraception mandate” in the law, despite much media statements to that effect. He says that employers are not forced to provide contraceptives to their employees because employers who strongly object to it have the option of not providing any health insurance to their employees at all, since the law does not demand that companies provide health insurance.
Yes, the law does impose a legal requirement – many of them, in fact – on all health insurance plans. Nevertheless, contrary to common wisdom and popular rhetoric, there is no “employer mandate” to offer employee health plans, no matter how large the employer. Employers, both large and small, may lawfully decline to offer such plans. Indeed, the direct effect of doing so ordinarily would be a cost savings to the employer, which is why many employers will choose this option. And in such a case the employees will hardly be out of luck: They will then be able to purchase affordable health insurance on an exchange – with generous government subsidies, if necessary – and the insurance plans they purchase will meet all the applicable federal standards, including contraception coverage.
To be sure, many other employers will choose to continue offering employee plans, for a complex array of reasons, most of which are not a function of federal law. And I have argued (see my Balkinization Hobby Lobby posts III, III-A, III-B, and IX) that the Hobby Lobby and Conestoga Wood employers, in particular, have failed to plead facts sufficient to demonstrate that federal law imposes substantial pressure on them to decline that option – a pleading inadequacy that may be fatal to their RFRA claims. But whether I am right about that or not, it is still the case that if an employer does not wish to include all the incidents of insurance that federal law requires be included in all plans, its option is not nearly as draconian as having to reduce its workforce to fewer than fifty employees (a response that would not have the desired effect, in any event, because small employer plans must also include contraception coverage) or face bankrupting fines: It has the much less draconian legal option of increasing its employees’ wages in lieu of such insurance coverage . . . in which case the employees will be able to purchase an insurance plan that includes the same federally mandated minimum protections to which everyone else is entitled.
I think he makes a good case. The government has already caved on this issue to explicitly religious organizations such as churches by allowing them to opt out of the ACA’s requirement though, as we saw with the University of Notre Dame and Little Sisters of the Poor cases, the religious feelings of these groups are so delicate that even filling out a simple form to get the exemption constitutes an unbearable shock to their nervous systems, a ridiculous argument that the courts rightly rejected, at least in the case of Notre Dame, though the Little Sisters case is still pending appeal.
There is no limit to the special pleading by religious groups to be exempt from the requirements that the rest of us must live by. I think the Obama administration has already gone too far in accommodating them. I hope the US Supreme Court does not go even further.