Protesters in front of the federal courthouse in Williamsport, Penn. during a rally against the Obamacare HHS contraception mandate on Friday March 23, 2012. (Photo: AP / Mark Nance, Williamsport Sun-Gazette)
Nobody questions the deeply held religious beliefs of the corporate owners who will challenge in the U.S. Supreme Court this week the Affordable Care Act’s requirement that employee health insurance plans cover contraceptives. But that’s where all agreement ends.
On Tuesday, the justices will confront two deceptively direct questions raised by the Green family, owner of the Oklahoma-based Hobby Lobby Stores Inc. craft chain, and the Hahn family, who own Pennsylvania-based Conestoga Wood Specialties Corp. in the latest Affordable Care Act challenge.
They ask: Does the requirement violate the First Amendment free exercise of religion rights of a for-profit corporation or its religious owners? And, second, does it violate the federal Religious Freedom Restoration Act (RFRA) by substantially burdening the corporations’ or their owners’ exercise of religion?
Like a rock skipping across a still pond, those questions create ripples. Can a corporation exercise religion? Is a corporation a “person” under the RFRA? How does a contraception requirement “substantially burden” an employer’s exercise of religion? Does the government have a “compelling interest” in requiring contraception coverage?
One sign of the case’s complexity came on March 20, with the justices’ order expanding argument time from 60 to 90 minutes.
Taking on those questions in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius are 84 amicus briefs (59 supporting the owners, 23 for the government and two for neither party).”It would be a very dramatic step for the court to recognize a religious exemption for these companies when it would impose such a burden on third parties,” namely women who depend on contraceptive services, said Walter Dellinger of O’Melveny & Myers, who filed an amicus brief supporting the government on behalf of the Guttmacher Institute.
And yet, “in America, we tolerate a diversity of opinions and beliefs; we don’t try to separate what people do from what they believe,” said Alliance Defending Freedom Senior Counsel David Cortman, counsel to the Hahns. “The Constitution guarantees the highest form of respect to the Hahns’ freedom.”
At the controversy’s center are federal regulations requiring that women’s preventive care and screenings include “all Food and Drug Administration approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”
The Greens, practicing Christians, and the Hahns, devout Mennonites, object to coverage of four of the 20 approved methods: two types of intrauterine devices and contraceptives known as Plan B and Ella. They believe those four are “abortifacients” because they prevent implantation of a fertilized egg into the uterus. They face substantial, even ruinous, fines if the coverage is omitted or they eliminate their policies.
“The government cannot simply wish away the reality that its policies substantially burden [their] religious exercise in a wholly unjustified manner,” said Paul Clement of Bancroft, who will argue for the two families.
But for-profit corporations do not exercise religion and the law imposes no personal obligations on the corporate owners here, Solicitor General Donald Verrilli Jr., who will defend the contraceptive requirement, counters in court papers. That requirement “regulates only the corporations they own and the group health plan the corporations sponsor.”
The Becket Fund for Religious Liberty and the Alliance Defending Freedom brought the two cases, but no major business organizations or companies are among their supporters. The U.S. Chamber of Commerce is absent. And, “although we have been heavily involved in past health care cases at the Supreme Court, our legal center focuses on cases that impact our members, which this one did not,” said Kelly Hoffman of the National Federation of Independent Business.
Charles Proctor III of Proctor Lindsay & Dixon in Chadds Ford, Pa., who represented the Hahns in the lower courts, said the Alliance Defending Freedom, with whom he is allied, had a team of lawyers on amicus briefs, coordinating with Lori Windham of the Becket Fund.
A number of their briefs tackle the scope of the Religious Freedom Restor­ation Act of 1993, which provides that the government “shall not substantially burden a person’s exercise of religion” unless the government has a compelling interest and has chosen the least restrictive means of achieving it. They argue the contraception coverage is a “substantial burden” on the religious beliefs at stake; for corporate “personhood”; for contraceptives’ allegedly harmful effects on women; and that the government lacks a compelling interest.
Religion scholar Douglas Laycock of the University of Virginia School of Law delves deeply into RFRA’s legislative history, concluding the law “protects ‘a person’s exercise of religion’ — not a natural person’s, or a not-for-profit person’s. And of course ‘person’ in federal legislation includes natural persons and every form of artificial person, including for-profit corporations, unless the context indicates otherwise.”Brigitte Amiri of the American Civil Liberties Union, who helped coordinate the amicus efforts in support of the government along with the National Women’s Law Center, said a real effort was made not to file duplicative briefs while still offering views on “the full range of issues, and a full range of voices.” That has meant an emphasis on the Religious Freedom Restoration Act, less so on the free exercise clause of the First Amendment.
Several briefs confront head-on the law’s requirement that a government action that impinges on religious beliefs must serve a compelling governmental interest. The Guttmacher Institute argues that making the full range of contraceptive methods affordable is critical to women’s health and reducing unintended pregnancies and abortions.
Government-side briefs also assert that giving for-profit corporations religious freedom rights could complicate corporate governance. “Individuals and organizations motivated by religion could seek to influence corporate governance in a number of ways, including proxy contests and shareholder derivative actions designed to establish or alter a target company’s religious identity,” the U.S. Women’s Chamber of Commerce and the National Gay & Lesbian Chamber of Commerce argued.
Some church-state scholars warn that giving Hobby Lobby and Conestoga Wood an exemption would violate the establishment clause. “The Establish­ment Clause prohibits the government from shifting the costs of accommodating a religion from those who practice it to those who do not,” according to a brief filed by Frederick Gedicks of Brigham Young University J. Reuben Clark Law School.