Today, two very large for-profit corporations – arts and crafts behemoth Hobby Lobby and cabinet-maker Conestoga Wood Specialties – argued before the Supreme Court, to ask that they be allowed to deny employees access to contraceptive coverage mandated under the Affordable Care Act. Under the ACA, employer health plans must cover all FDA-approved birth control methods and services, without a co-payment.
It’s difficult to overestimate just how ridiculous this in, on many levels.
For one thing, such coverage was included in the majority of insurance policies before the ACA, and no one raised a fuss. All of a sudden, this is a problem? Oh, right; it’s the government mandate. I forgot. We should allow companies to do whatever they want. Right?
For the Supremes to go along with this and side with these two secular companies, however, would essentially shred the First Amendment to pieces. These policies aren’t a gift from the companies to their employees; they’re an integral part of an employee’s compensation package. Which means it’s the employee who is paying for the policy. To allow a company to decide unilaterally not to allow contraception coverage is essentially the same as allowing a company to dictate to employees regarding how they spend their salaries. For example, what if Hobby Lobby and Conestoga were to demand that employees not spend any of their salary on contraception. Would that fly for the same pseudo-religious geniuses who are citing these companies’ “freedom of religion” as a rationale for this silliness?
The real legal question that the two companies are asking the Supremes to resolve is whether the ACA’s contraception coverage mandate violates the Religious Freedom Restoration Act of 1993, which prohibits the government from creating a situation that will “substantially burden a person’s free exercise of religion.” The key word there is “person.” There is an exception to the rule, such as when the burden is necessary to satisfy a “compelling government interest.” The government must also act base on “the least restrictive means.” Given that no one who buys an insurance policy is being forced to use birth control, it’s difficult to imagine a “less restrictive means” for encouraging access to birth control. Companies are also not actually required to provide employees insurance at all; they do have the option of paying a tax, if they find the rules too difficult to follow.
I noted that “person” is a key word here. The First Amendment guarantees the right of “persons” to be free to worship as they please, or to not worship at all if they so choose. Since these companies are not religious organizations, and they are unaffiliated with religious organizations, their claim that the ACA mandate is a violation of their religious liberty turns partly on their claims of “personhood.” Unfortunately, that term as been partly redefined in recent years by modern Republicans. Hobby Lobby and Conestoga claim the mandate places a “substantial burden” on their religious exercise, which is an absurd argument. Everyone inside those companies is free to worship as they wish right now, even with the contraception rules in place. But if the companies prevail, the religious beliefs of thousands of employees will no longer be intact. Have the corporate “persons” ever set foot in a church? Better yet, how does he/she/it claim a single religion? By fiat?
As at least one amicus brief filed in this case very eloquently points out, if the Supreme Court were to allow a secular corporation to have a religious exemption, it would actually destroy the balance of power between corporations and shareholders. A basic fundamental principle of the structure of corporate law involves creating a legal “person” that has rights and obligations that are separate from the rights and obligations of its shareholders. It would effectively allow shareholders to vote to pass their religious values on to the corporation, regardless of the religion they claim.
There is no doubt that our government – and health insurance companies, for that matter – has a “compelling” interest when it comes to reducing the number of unwanted pregnancies. Strangely, one would think the people proffering the “religious” argument would as well, since reducing unplanned and unwanted pregnancies also reduced the number of abortions. But alas, there is no common sense in anti-choice land.
While it’s not likely the Supremes will side with the corporations on this, it will be a bad thing if it does. Although there would be a silver lining to that black cloud. The government has already carved out an accommodation for real religious entities in their role as employers, by creating a “free insurance option” for those who work for a church. If you think about it, this can be seen as a forerunner to a “public option.”
Other than that, however, such a decision would be a disaster. Where do you draw the line? What if a company is owned by someone who thinks there should be no blood transfusions? What if another is owned by someone who claims their religion forces them to deny psychiatric care coverage? What if their religion precludes them “offering” anesthesia coverage or vaccinations? And what if a company’s claimed “religious beliefs” cause them to deny insurance coverage to gays, blacks or women?
This is an area where the Supreme Court can really only go in one direction. To grant religious rights to corporations would effectively deny the same rights to the millions of people who work for companies like this.