People can pray. Corporations cannot.
But now the Supreme Court must decide whether impersonal, for-profit companies do enjoy religious rights that exempt them from providing contraceptives under the Obama administration’s health care law.
“That’s a big question,” said Laurie Sobel, a senior policy analyst with the Kaiser Family Foundation, a private, nonprofit health research group, “and it’s a big door to open.”
On Tuesday morning, the court’s nine justices will confront the corporate religious objections to the Patient Protection and Affordable Care Act. The oral argument marks the court’s first reconsideration of the law since a landmark 2012 decision.
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This time, in an unusually long 90-minute argument, the closely divided court will hear challenges from a chain of craft stores and a Pennsylvania-based cabinet manufacturing company. Both corporations are owned by devout individuals. Both are profitable.
And both seek exemption from the health law’s requirement to provide contraception as part of a broader insurance package.
“(They) believe that human beings deserve protection from the moment of conception, and that providing insurance coverage for items that risk killing an embryo makes them complicit in abortion,” attorneys for the Hobby Lobby chain wrote in a legal brief.
Hobby Lobby is a multibillion-dollar, Oklahoma-based company that employs about 13,000 workers nationwide. Conestoga Wood Specialties is a smaller firm owned by a Mennonite family in Pennsylvania’s Lancaster County. Both have invoked the First Amendment’s provision that guarantees the right to freely exercise religious beliefs.
The companies also claim protection under the 1993 Religious Freedom Restoration Act. The 1993 law offers religious practitioners protection against government intrusion. The big question Tuesday is whether this protection extends to corporations as well as living, breathing individuals.
It’s a question that evokes strong and conflicting opinions.
Attorneys general for 18 states including Georgia, Alaska, Idaho, Kansas, South Carolina, Texas and Florida have sided with the religiously affiliated companies. California and Washington have joined with 13 other states in supporting the mandate.
“Corporations, of course, cannot suffer. They are not sentient. They have no soul,” said Caroline Mala Corbin, a professor at the University of Miami School of Law. “Religious protection only makes sense when it applies to actual people.”
“Followers of kosher rules run catering companies,” attorneys for Conestoga Wood Specialties wrote. “Families that observe the Sabbath operate fast food restaurants and craft stores. And those who value sacred texts publish and distribute books. Whatever the legal status of their organizations, owners and operators do not check their beliefs at the door each Monday morning.”
Ironically, the Religious Freedom Restoration Act that conservatives might use to strike down the contraception mandate was a congressional reaction to a 1990 opinion by strictly conservative Justice Antonin Scalia. Scalia’s 1990 opinion reasoned that religious objectors are not exempt from a “neutral law of general applicability.”
Adding even more judicial spice, the conservative-dominated court that will decide this question is the same court that likened corporations to people in erasing limits on corporate campaign spending.
“Political speech does not lose First Amendment protection simply because its source is a corporation,” Justice Anthony Kennedy, often a swing vote, wrote in the court’s 2010 Citizens United case.
The potential consequences, moreover, reach beyond the 80-plus federal lawsuits that have been filed by colleges, charities and others challenging the contraception mandate.
The court’s eventual ruling, expected by the end of June, also could signal states about the future of legislation allowing businesses to deny services on religious grounds. A bill recently passed by the Arizona Legislature, but vetoed by Republican Gov. Jan Brewer, for instance, would have permitted businesses to cite religious beliefs in denying service to gay couples.
“The cases are unprecedented,” said Supreme Court practitioner Tom Goldstein, founder of the popular ScotusBlog website. “The justices are going to have very different takes on who should win and who should lose.”
The high court’s customary ideological divide, moreover, collapsed the last time justices considered the health care law. In June 2012, conservative Chief Justice John Roberts Jr. sided with liberals and wrote the 5-4 majority opinion upholding the law’s individual mandate.
The mandate requires individuals to purchase insurance or pay a penalty. The so-called contraceptive mandate now under fire is different. It regulates the breadth of coverage that employers must provide.
The health care law passed in 2010 requires that insurance packages cover certain preventive practices to be provided without fees or cost-sharing from the patient. Many are uncontroversial, like immunizations and diabetes screening. The package is also supposed to cover contraceptives, sterilization procedures and counseling.
Several of the approved contraceptive methods, such as the drug known as Plan B, are considered by pro-life advocates as tantamount to an abortion.
Churches are exempt, and employers with fewer than 50 workers need not provide any coverage at all. Religiously affiliated nonprofits have a special accommodation, so they don’t have to directly provide the contraceptive coverage.
But for-profit companies aren’t exempted, and those that don’t provide coverage face fines of $100 a day per employee. For Conestoga Wood Specialties, with about 950 employees, that adds up to $95,000 a day. For Hobby Lobby, the potential fine reaches a crippling $1.3 million a day.
“It forces them to choose between violating their religious convictions and incurring ruinous fines and lawsuits,” Conestoga Wood Specialties’ attorneys wrote in a brief.
The religiously affiliated companies’ case is complicated by the fact that a legal corporation exists precisely to be an entity distinct from individuals; in part, in order to limit the individuals’ legal liability. That seemingly makes it harder for the individuals’ beliefs and personal convictions to pass through to the corporation.
If the court nonetheless extends religious protections to corporations, the next question under the Religious Freedom Restoration Act is whether the contraception mandate imposes a substantial burden on the company. If yes, then the question after that is whether the mandate is the “least restrictive means” of supporting a “compelling interest.”