Can a corporation claim to have religious beliefs and, if so, does it violate those beliefs to force the business to include contraceptive coverage in the health insurance it provides its employees? The U.S. Supreme Court has just granted review in two cases on the issue: Conestoga Wood Specialties v. Sebelius and Sebelius v. Hobby Lobby Stores. The cases present fascinating legal questions, but the answer should be clear: Requiring insurance coverage to pay for contraceptives does not violate the law.
The Patient Protection and Affordable Care Act required that the U.S. Depart­ment of Health and Human Services promulgate regulations calling for insurers to provide coverage for preventative medical care. These regulations mandate that employers include payments for contraceptives in their insurance coverage. The regulations have exceptions for religious institutions, so the Catholic Church or a Catholic university would not need to provide this coverage in their insurance plans.
Corporations that are not religiously affiliated in any way have challenged the regulations and said that they wish to operate in accord with the faith of their owners and they do not want to provide contraceptive coverage. They have brought their claims primarily under a federal statute, the Religious Freedom Restoration Act, which says that the government can significantly burden religious freedom only if its action is necessary to achieve a compelling government purpose. They also have claimed that the regulations violate the free-exercise clause of the First Amendment, but no lower court gave much weight to this argument. In Employment Division v. Smith, the Supreme Court held in 1990 that the free-exercise clause cannot be used to challenge a generally applicable law, even if it burdens religion. The Health and Human Services regulations do not target religions and were not motivated by a desire to interfere with religion, making a successful challenge under the free-exercise clause unlikely.
The central issue before the court is thus whether the regulations violate the Religious Freedom Restoration Act. The threshold question in these challenges is whether a corporation that is otherwise secular can claim to have a “religion.” One of the cases was brought by Hobby Lobby, a corporation that employs more than 20,000 people.
Never before has the Supreme Court allowed secular corporations to claim religious freedom. Nor does it make sense to allow this. People create corporations to protect themselves from liability. By making the corporation a separate entity, the investors are liable only to the extent of their investment. The corporation is an entity that is treated as legally separate from the individuals who run it or own it. Free exercise of religion is based on protecting an individual’s ability to follow his or her religious beliefs. But a corporation cannot have beliefs, religious or otherwise. In recent years, the court has accorded free speech rights to corporations. In doing so, however, it always has explained that allowing more speech furthers the underlying goal of the First Amendment — that of enabling people to be better informed.
The issue of free speech has no application to the question of whether corporations can claim religious freedom. A better analogy is to the privilege against self-incrimination under the Fifth Amendment. Individuals can claim this privilege, but not corporations.
NO RIGHTS VIOLATIONS
Moreover, even if secular corporations can be said to have religious beliefs, requiring that their insurance includes coverage for contraceptives does not burden or violate their rights. The companies, and their owners and officers and directors, remain free to openly express opposition to the use of contraceptives. The federal regulations do nothing more than require them to provide insurance coverage for contraception.
As federal court of appeals Judge Harry Edwards explained in a dissenting opinion, “The Supreme Court has never applied the Free Exercise Clause to find a substantial burden on a plaintiff’s religious exercise where the plaintiff is not himself required to take or forgo action that violates his religious beliefs, but is merely required to take action that might enable other people to do things that are at odds with the plaintiff’s religious beliefs.”
Even if corporations could claim free exercise of religion and even if the contraceptive mandate was seen as infringing it, the law still would be constitutional because it advances a fundamental constitutional right. For almost a half-century, the Supreme Court has held that people have the fundamental right to control their reproductive autonomy, which includes the right to purchase and use contraceptives. The government has a compelling interest in helping to facilitate the ability of people, and especially women, to exercise this basic right of reproductive autonomy. The federal courts of appeals split on these questions. Like everything with the Affordable Care Act, the judges divided along ideological and political lines. For example, in two recent decisions, not before the Supreme Court, both the D.C. Circuit and the Seventh Circuit split, 2-1, with the judges appointed by Republican presidents voting to invalidate the mandate for insurance coverage, while the judges appointed by Democratic presidents voted to uphold it.
Hopefully, though, the Supreme Court will transcend this partisanship and hold clearly and simply that the federal regulations are valid. Corporations don’t have religious freedom, and even if they do, the contraceptive mandate does not violate the free-exercise clause or the Religious Freedom Restoration Act.
Erwin Chemerinsky is dean and Ray­mond Pryke Professor of First Amendment Law at University of California, Irvine School of Law.