National Review Online Senior Editor Ramesh Ponnuru dedicated his Bloomberg View column to misleading about two unprecedented Supreme Court cases that could make it easier for for-profit, secular corporations to refuse to provide insurance coverage to its employees that includes comprehensive preventive care.
On November 26, the Supreme Court agreed to hear arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius, two cases that would allow some corporations to obtain exemptions from the contraception mandate in the Affordable Care Act (ACA). The ACA already provides exemptions and accommodations for non-profit, religiously-affiliated organizations like churches and hospitals -- but the plaintiffs in Hobby Lobby and Conestoga are for-profit businesses that sell crafts and wood cabinets, respectively.
But that didn't stop NRO's Ponnuru from complaining that the contraception mandate runs afoul of the Religious Freedom Restoration Act (RFRA) because it imposes a "substantial burden" on Hobby Lobby and Conestoga. Ponnuru insisted that corporations are well within their rights to refuse to pay for coverage of preventive care such as contraception for their employees, but didn't seem to mind that allowing corporations to dictate the personal health choices of its employees could very well infringe on those employees' religious beliefs.
From Ponnuru's December 1 editorial:
From reading the New York Times, you might think that religious conservatives had started a culture war over whether company health-insurance plans should cover contraception. What's at issue in two cases the Supreme Court has just agreed to hear, the Times editorializes, is "the assertion by private businesses and their owners of an unprecedented right to impose the owners' religious views on workers who do not share them."
That way of looking at the issue will be persuasive if your memory does not extend back two years. Up until 2012, no federal law or regulation required employers to cover contraception (or drugs that may cause abortion, which one of the cases involves). If 2011 was marked by a widespread crisis of employers' imposing their views on contraception on employees, nobody talked about it.
What's actually new here is the Obama administration's 2012 regulation requiring almost all employers to cover contraception, sterilization and drugs that may cause abortion. It issued that regulation under authority given in the Obamacare legislation.
The regulation runs afoul of the Religious Freedom Restoration Act, a Clinton-era law. That act says that the government may impose a substantial burden on the exercise of religious belief only if it's the least restrictive way to advance a compelling governmental interest. The act further says that no later law should be read to trump this protection unless it explicitly says it's doing that. The Affordable Care Act has no such language.
Is a marginal increase in access to contraception a compelling interest, and is levying steep fines on employers who refuse to provide it for religious reasons the least burdensome way to further it? It seems doubtful.
Ponnuru's characterization of these lawsuits as entirely mainstream is misleading. Although the Supreme Court held in Citizens United that corporations had the right to engage in political speech without undue government restrictions, for the Court to hold that a corporation is a "person" capable of religious belief or conscience would be a radical reimagining of both First Amendment and corporate law precedent. As David Gans of the Constitutional Accountability Center pointed out, "it is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons. No decision of the Supreme Court has ever recognized such an absurd claim."
Ponnuru suggests that the contraception mandate is a novel concept, but beginning in the mid-1990s, both red and blue state legislatures passed contraception mandates (complete with similar exemptions and accommodations for religious entities) and were on the books in 26 states prior to the ACA's emulation of their efforts. The legal challenges in Hobby Lobby and Conestoga are seeking to redefine not only Supreme Court case law, but also a form of insurance coverage that has only now become so objectionable to the right-wing.
It's important to note that the contraception mandate does not require the individual owners to take or use any medication that they may find morally objectionable -- only that the corporation as a legal entity provide the coverage to its employees. What Ponnuru is essentially arguing for is an expansion of the concept of "corporate personhood" that goes beyond even the holding of Citizens United.
What Ponnuru doesn't discuss is that to allow a corporation to flex the religious beliefs of its owners will place a significant burden on its employees -- something that, as law professors Micah Schwartzman and Nelson Tebbe explained in Slate, the Supreme Court has previously found to be unconstitutional:
The Establishment Clause allows the government to accommodate religious actors in many situations by removing burdens on religious belief. But in an important line of cases that has not received the attention it deserves, the Supreme Court has insisted that the Establishment Clause prohibits religious accommodations that impose burdens on third parties -- which is exactly what is happening here. Exempting Hobby Lobby from the contraception mandate will seriously burden precisely those women who are its intended beneficiaries. Supreme Court case law on the Establishment Clause does not allow that result. In one decision, among many, Chief Justice Warren Burger quoted Judge Learned Hand, saying "[t]he First Amendment gives no one the right to insist that in pursuit of their own interests others must conform their conduct to his own religious necessities." That constitutional principle matters here in a particularly powerful way because Hobby Lobby is basing its claim on [RFRA]. But no statute, including one that purports to extend religious liberty, can be applied in a manner that conflicts with a provision of the Constitution.
But Ponnuru seems to be more concerned with the religious freedoms of a corporation (not an actual human being) rather than its employees (actual human beings).
Moreover, Ponnuru echoes the Hobby Lobby plaintiffs' disingenuous argument of calling emergency contraception a drug that "may cause abortion," even though actual science shows overwhelmingly it does not. His assertion that the ACA's contraception mandate does nothing more than provide a "marginal increase in access to contraception" is also erroneous. In fact, the mandate will allow nearly 47 million women to more easily access preventive services like contraception and mammograms.
It's unclear whether or not the conservative justices of the Supreme Court will find this compelling enough to not upend precedent, but they have rejected religious freedom arguments from employers in the past. Ponnuru dismisses the idea that the Hobby Lobby and Conestoga cases will lead employers to flout other federal regulations on the basis of religious beliefs, arguing that he has never "heard of anyone going without a blood transfusion" just because his or her employer is a Jehovah's Witness who objects to such a procedure. Ponnuru insists that this "slippery-slope argument" -- the idea that employers could use their religious beliefs as the basis to challenge any law they deem immoral -- is "wholly hypothetical."
What Ponnuru doesn't mention is that religious employers have attempted to avoid federal law by advancing a religious freedom argument. In 1982, an Amish employer refused to withhold Social Security taxes, arguing that his religious beliefs exempted him from paying those taxes on behalf of his employees. The Supreme Court disagreed, holding that "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity,"
What Ponnuru dismisses as a "hypothetical" is, actually, quite real.