The Affordable Care Act v. Supreme Court, Round 2

By Scott Lemieux, The American Prospect

29 November 13

Diving into the two contraception-mandate cases the high court will hear this term: Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc.

esterday, the Supreme Court agreed to hear two cases questioning the Affordable Care Act's contraception mandate: Conestoga Wood Specialties Corp. v. Sebelius and Sebelius v. Hobby Lobby Stores, Inc. These rulings could have potentially major implications for the rights of American women. Let's consider the issues at hand, one at a time:

Does the contraceptive mandate violate religious freedom?

The key question in both cases is whether the contraceptive mandate violates the Religious Freedom Restoration Act. This legislation requires any policy placing a "substantial burden" on religious Americans prove that said burden serves a compelling government interest. Both Conestoga Wood and Hobby Lobby contend that the Affordable Care Act's demand that they offer contraception coverage to their employees does not pass the Religious Freedom Restoriation Act's test. But, as the Prospect's Amelia Thomson-DeVeaux asks, is the mandate actually violating the religious beliefs of these companies? The arguments being made against the mandate are not based on theological doctrines concerning birth control-the employers in question are Protestants, not Roman Catholics. Instead, they are based on the scientifically erroneous belief that some forms of contraception constitute a form of abortion.

Even if we assume the mandate conflicts with a sincere religious belief-and I'm inclined to think that courts should be highly deferential on this question-there must be a showing that the mandate "substantially" burdens this belief. For reasons I have previously discussed at length, this argument is remarkably weak. The mandate does not require anyone to use contraception or promote contraception-if that burden is "substantial," then the word has no meaning. Essentially, any regulation could be subject to constitutional challenge given a bare assertion of a religious conflict.

Of course, the libertarian implications of this argument are no accident. The chairman of Eden Foods, one of the companies that challenged the mandate (although their case was not taken by the Supreme Court), told the journalist Irin Carmon: "I don't care if the federal government is telling me to buy my employees Jack Daniel's or birth control. What gives them the right to tell me that I have to do that? That's my issue, that's what I object to, and that's the beginning and end of the story." The fact that the legal theory being used to challenge the mandate would provide a license for federal judges to arbitrarily rule any regulation they don't like inapplicable is more of a feature than a bug for the challengers. But when Congress passed RFRA it did not intend to subject federal regulations to Ayn Rand's philosophical commitments.

Needless to say, it's not just economic libertarianism that caused the otherwise inexplicable focus on birth control, either. A footnote in a brief responding to Carmon mention that the company did not challenge the accuracy of her reporting but did note that her story appeared in an online forum that also discussed issues of human sexuality. So it's not just economic libertarianism-the challenge to the mandate is rooted in misogyny and puritanism as well. Employers are free to have reactionary views about economics and gender, but these beliefs are not protected by RFRA or the First Amendment's free-exercise clause when they conflict with valid state objectives.

Can secular, for-profit corporations engage in the "free exercise of religion?"

Even if one assumes that the mandate represents a "substantial burden," another problem with the argument being made against the mandate is that the free exercise of religion is an inherently individual act. As Sarah Posner argued, the idea that a secular, for-profit corporation can "exercise" religion is a strange concept that would be inconsistent with a substantial body of precedent. While some have argued that the Court's Citizens United decision should be seen as changing the legal context, the issues involved are very different. Corporations must have some free speech rights because the dissemination of speech often involves corporate entities; Congress cannot ban the showing of Masters of Sex just because it's distributed by Viacom. Religious exercise, conversely, is inherently personal. Some shareholders in the Hobby Lobby may have religious beliefs that contradict the religious mandate, but the corporation itself cannot.

What about closely held corporations?

One potential argument, recently made by the D.C. Circuit Court of Appeals, is that a corporation itself cannot exercise religion, but a corporation's owners can. Since one argument made by Conestoga Wood is that the religious rights of the company's owners have been violated even if those of the company cannot be, the case is presumably a vehicle for the Court to examine this legal question as well. In my judgement, this argument is no more convincing than Hobby Lobby's. The owner of a business cannot obtain the advantages of a corporate form (including substantial insulation from personal liability) while remaining an individual when it is advantageous to do so. Nonetheless, it would not be surprising for the Supreme Court to split the baby by rejecting the Hobbby Lobby's claim while accepting the ones raised by the owners of Conestoga.

A final point: The mandate doesn't provide "free" contraception.

One argument that has been made again and again by supporters of the legal challenges is that the religious consciences of employers are being burdened so that employees can get "free" contraception. But this is an erroneous argument that misapprehends the basic concept of employer-provided health insurance. Contraception provided by health insurance isn't "free," it's earned. Companies get substantial taxpayer subsidies for partly paying employees in health insurance instead of cash. In exchange, this insurance has to be comprehensive enough to provide value to the employee. Women getting basic health-care needs covered by insurance they're receiving as compensation are not receiving any kind of free ride.

This point underscores just how weak the legal challenge to the mandate is. The employers in question are claiming that there's a major religious freedom issue at stake depending on whether employees obtain contraception through direct wages or through the insurance employers get tax benefits for paying employees with instead. But there isn't. The "burden" imposed by the mandate is utterly trivial, and the argument that it violates RFRA should be rejected by the Supreme Court.