CBS Doesn't Tell Full Story On Reproductive Justice Case Headed To Supreme Court

CBS Evening News left out some important details in its report on a Supreme Court case that could extend the concept of corporate personhood outlined in Citizens United by allowing secular, for-profit corporations to dictate reproductive decisions for its employees.

On Tuesday, the Supreme Court agreed to hear oral arguments in Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, two cases in which business owners argue they should be exempt from certain Affordable Care Act (ACA) requirements. In reporting on this case, CBS opted to highlight Denver-based Hercules Industries, a company with Catholic owners who are protesting the contraception mandate in court. But Hercules is not actually a plaintiff in either of the cases that have been accepted for review. The actual plaintiffs before the Supreme Court, while not Catholic, nevertheless claim that their religious beliefs preclude them from providing health insurance for their employees that covers comprehensive preventive care, because of their personal opposition to certain forms of birth control.

From CBS's November 26 report:

REPORTER ANNA WERNER: Denver-based heating and air condition manufacturer Hercules Industries has a health plan for its employees, one that doesn't include contraception. The family-owned company is one of 44 businesses suing to stop the federal government from forcing it to cover birth control.

Andy Newland is company president.

NEWLAND: This case isn't about saying that people not having access to those things. This case is saying we just don't want to pay for them.

WERNER: Newland's family is Catholic. The religion views artificial contraception as a sin. Under the Affordable Care Act, companies like Hercules with 50 or more employees, must cover contraception.

NEWLAND: Can Americans, including family-business owners, live and do business according to our faith?

WERNER: How is that different from telling your employees you can't use birth control pills?

NEWLAND: We're not saying don't go buy them. We're not putting barricades in front of Wal-Mart. We're saying we simply don't want to pay for them.

Though CBS profiled a company owned by Catholics, it did not mention that many non-profit Catholic and other religiously-affiliated entities are already provided exemptions from the mandate. Whether these exemptions should be extended to for-profit, secular corporations is a separate and novel question that could extend even farther the radical concept of “corporate personhood” outlined in the recent Citizens United decision.

But by arguing that the individual religious beliefs of the owners extend to the corporation as an entity, the business owner plaintiffs are going against the basic tenets of corporate law. As SCOTUSblog reporter Lyle Denniston explains, the primary benefit of establishing a corporate identity is so owners can “keep themselves independent from it”:

Most corporations that engage in ordinary business activities are organized as secular firms; that is, they enter the marketplace to carry out commercial, not religious, endeavors. But what is perhaps more important is that business people who form corporations do so to keep themselves independent from it: one of the main advantages of the corporate form is that the owners are not targeted when their company gets sued.

Moreover, it sounds somewhat strange for a commercial entity that is considered to have an artificial legal personality, like a corporation, to “exercise” religion.


The key dispute in this context thus appears to turn on whether the faith preferences of the owners of a profit-making corporation can be transferred to the business entity so that it is not an independent entity but rather, for constitutional purposes, an alter ego.

It's important to note that the contraception mandate does not and has not forced any individual business owner to take or use any medication to which they have a personal or moral objection. The mandate, and the extensive case law it's based on, reflects the fact that generally applicable and valid laws cannot, as conservative Justice Antonin Scalia wrote in Employment Division v. Smith, be subservient to all “professed doctrines of religious belief.” Writing for the majority in that case, Scalia wrote that to allow otherwise would be “in effect to permit every citizen to become a law unto himself.” In Hobby Lobby, the plaintiffs are going even beyond Scalia's warning by swapping citizen for corporation, an even more dramatic revision of both First Amendment and corporate law.

As Slate legal expert Dahlia Lithwick pointed out last summer, the consequences could be dramatic:

[T]he problem is self-evident. Where does it stop? Why does your boss' religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer's individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.

Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn't mean they trumped everything else. As we have advanced as a society--beyond slavery, segregation, homophobia, and sexism -- we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It's never been a perfect accommodation. It can't be. But religious liberty interests are rarely the only -- or even the most important -- interests at play.