Corporate Accountability

Obamacare Faces Further Supreme Court Test

By Pema Levy


The decision last year by the Supreme Court to deem Obamacare constitutional was thought to be the last word on the subject. But the legal battles are far from over.


On Tuesday, the Court agreed to hear two challenges to the part of the law that mandated non-religious institutions to cover contraception in their employees’ insurance plans. Conservatives who oppose the birth control requirement like the odds that the Justices will back them this time.


At the heart of the case is the conundrum raised by Governor Mitt Romney, the Republican presidential candidate in last year’s general election. In response to a heckler, Romney replied, “Corporations are people, my friend.”


The court will hear two cases (Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius) brought by the owners of two for-profit businesses who argue they should not have to cover certain birth control medication and devices that go against their religious beliefs. Despite a consensus in the medical community that the medication is suitable, the business owners believe these medications are abortifacients.


Both cases are complex and the court will go through several steps to reach its conclusion. First, the court must decide whether corporations have religious freedom rights under the Religious Freedom Restoration Act (RFRA). If the answer is yes, the court must then decide whether the contraception mandate is a substantial burden on the corporations’ free exercise of religion.


If the answer to that question is yes, it must decide whether the government has a compelling reason to impose such a burden. And if the answer to that final question is no, then the businesses prevail. On all three questions, conservatives think the odds are in their favor.


“I’m hopeful and confident that the Court will rule in favor of Hobby Lobby,” said Joshua Hawley, who is working for Hobby Lobby on the case and is a former clerk to Chief Justice John Roberts. “As a matter of statutory interpretation, the court will rule that indeed hobby lobby qualifies for religious freedom, for protection. It will ultimately rule in Hobby Lobby’s favor.”


“I don’t usually predict the Supreme Court,” said Michael McConnell, a conservative legal scholar and former judge on the Tenth Circuit. “I will say that the private parties, the companies, have a pretty strong case.”


Perhaps the most controversial and important question facing the court is whether corporations have free exercise rights, either under RFRA, the statute, or the First Amendment. The constitutional question is somewhat sticky, but on both left and right, experts feel the Court might decide corporations have religious rights under RFRA.


“I think Hobby Lobby has a very good chance winning on the statutory question,” said Adam Winkler, a constitutional law expert at UCLA School of Law.


On the liberal side of the spectrum, the idea that corporations have the same rights as people is horrifying. “Corporations don’t pray, they don’t express devotion to a god, they don’t have a religious conscience,” said David Gans, the director of the civil rights program and left-leaning Constitutional Accountability Center.


“These claims are particularly troublesome because the owners of the corporations are effectively trying to impose their religious beliefs on their employees who may not share these religious views and want access to a full range of contraceptives.”


In trying to guess which way the Court will leap, some proponents of corporations’ religious rights, including one Tenth Circuit judge, point to the Justices highly controversial Citizens United decision, which lifted restrictions on corporate electioneering based on the free speech rights of corporations, though the constitutional question in that case included the value of speech to listeners, which is absent from the current question of free exercise.


“It’s Citizens United on steroids,” Winkler said. “Not only are corporations people, but they are devout people who pray and have their own religious beliefs.”


The implications of corporations holding devout beliefs could be wide-ranging. What if a corporation doesn’t believe in gay marriage? What if they feel the minimum wage goes against scriptural teaching? In each case, the courts would have to find the religious interest more compelling than the government interest, but it’s possible these cases could open the door to all manner of corporate exemptions from federal laws.


In June of 2012, the Supreme Court surprised many by upholding most of the Affordable Care Act in an opinion written by Chief Justice Roberts. As the court prepares to hear its second challenge to the law, Court-watchers are looking at the chief as well as Justice Anthony Kennedy, the most common swing vote, in order to divine which way the court will go.


McConnell points to two recent religious freedom cases, both unanimous, in which Roberts penned the opinion for the court. In the first case, Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, Roberts gave a “broad interpretation” of RFRA. “That would be the best single case of evidence,” McConnell said.


But there is at least one case which could indicate some hesitancy on the part of the chief justice to ascribe individual, religious feelings to corporations.


In 2011, Roberts wrote a humorous opinion for a unanimous court in which he mocked AT&T for seeking an exemption from a federal law as an “unwarranted invasion of personal privacy.” The communications giant had argued that since Congress defines the noun “person” to include corporations, “personal” should also refer to a corporation.


“‘Personal’ ordinarily refers to individuals,” he wrote. “We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence or personal tragedy as referring to corporations.” Roberts couldn’t resist a final jab at AT&T, ending his opinion with the observation, “We trust that AT&T won’t take it personally.”


If it’s so hilarious to Roberts that corporations have feelings, is it obvious that they should have religious beliefs? “That AT&T case may be a sign of Roberts’ thinking,” Winkler said. “The emphasis on the AT&T case was on the right to privacy being thought of in very personal terms. Religious liberty is the same kind of right in some ways, a very personal right.”


The circuit courts have split on the cases and virtually every question raised in them. The Tenth Circuit Court of Appeals sided with the Green family, which owns the arts and crafts chain Hobby Lobby, while the Third Circuit denied the right of the Hahn family, which owns the Conestoga cabinet-making company, to deny coverage of certain medications.


The Court’s decision, expected in June, will decide whether thousands of women employees – and the wives and dependents of male employees – will be denied coverage for certain contraception medications or devices.


The conservative bent of the Court means the smart bet seems to be on the corporations rather than the government. But the Court, and Roberts, surprised everyone when it upheld most of the law last June.


The whole lesson of the ACA case was that speculation can be seriously misleading, Gans said.