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three types of birth control bills
The Supreme Court of the United States announced Tuesday that it will review two decisions testing the constitutionality of the ACA's contraceptive mandate as it pertains to corporations' religious objections to complying with the clause.

Under the ACA's minimum standards for employer health plans, such plans must include preventive care for women, including mammograms, cervical-cancer screenings, prenatal care, and contraceptives—all crucial to women's health. There is an exemption from the contraception-coverage requirement for “religious employers,” such as churches and nonprofit religious organizations, but that's as broad as it goes.

The questions involved are weighty and complex: can a for-profit corporation with 21,000 employees advance a free exercise claim on its own behalf? Can it advance one on behalf of its owners if the corporation is closely-held? Can any for-profit corporation be a "person" for purposes of the federal Religious Freedom Restoration Act, and if so are the burdens upon religious practice created the contraceptive mandate (1) in furtherance of a compelling governmental interest; and (2) the least restrictive means of furthering that compelling governmental interest?  

Think of the implications: Can a Christian Scientist employer deny most types of coverage altogether? what about religious exemptions to vaccines, or treatments based on stem cell research?  What about a publicly held company—which of its shareholders' beliefs can be protected?

Below the fold, some excerpts from the two decisions being appealed, to give you a flavor for the arguments you can expect.

First, the Conestoga Wood (3d Cir) decision, which the administration won:

We are unable to determine that the "nature, history, and purpose" of the Free Exercise Clause supports the conclusion that for-profit, secular corporations are protected under this particular constitutional provision. Even if we were to disregard the lack of historical recognition of the right, we simply cannot understand how a for-profit, secular corporation — apart from its owners — can exercise religion. As another court considering a challenge to the Mandate noted:
General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion. They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors....
The Hahn family chose to incorporate and conduct business through Conestoga, thereby obtaining both the advantages and disadvantages of the corporate form. We simply cannot ignore the distinction between Conestoga and the Hahns. We hold — contrary to Townley and Stor-mans — that the free exercise claims of a company's owners cannot "pass through" to the corporation.

...Our conclusion that a for-profit, secular corporation cannot assert a claim under the Free Exercise Clause necessitates the conclusion that a for-profit, secular corporation cannot engage in the exercise of religion. Since Conestoga cannot exercise religion, it cannot assert a RFRA claim. We thus need not decide whether such a corporation is a "person" under the RFRA....

Finally, we consider whether the Hahns, as the owners of Conestoga, have viable Free Exercise Clause and RFRA claims on their own. For the same reasons that we concluded that the Hahns' claims cannot "pass through" Conestoga, we hold that the Hahns do not have viable claims. The Mandate does not impose any requirements on the Hahns. Rather, compliance is placed squarely on Conestoga. If Conestoga fails to comply with the Mandate, the penalties — including fines and civil enforcement — would be brought against Conestoga, not the Hahns. As the Hahns have decided to utilize the corporate form, they cannot "move freely between corporate and individual status to gain the advantages and avoid the disadvantages of the respective forms."

Which makes for a shorter opinion, because they don't have to get into the second part of the question—even if there is a right, is it unduly burdened here? For that analysis, we go to Hobby Lobby (10th Cir), in which religious claims prevailed as to objections to paying for two types of IUDs and the emergency contraceptives commonly known as Plan B and Ella.

First, is there a corporate religious claim at all?

[T]he Supreme Court has settled that individuals have Free Exercise rights with respect to their for-profit businesses. See, e.g., United States v. Lee, 455 U.S. 252, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982) (considering a Free Exercise claim of an Amish employer); Braunfeld v. Brown, 366 U.S. 599, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961) (plurality opinion) (considering a Free Exercise claim by Jewish merchants operating for-profit).

In short, individuals may incorporate for religious purposes and keep their Free Exercise rights, and unincorporated individuals may pursue profit while keeping their Free Exercise rights. With these propositions, the government does not seem to disagree. The problem for the government, it appears, is when individuals incorporate and fail to satisfy Internal Revenue Code § 501(c)(3). At that point, Free Exercise rights somehow disappear.

.... [A]s discussed above, Hobby Lobby and Mardel — two for-profit corporations — proselytize by purchasing hundreds of newspaper ads to "know Jesus as Lord and Savior."  Because Hobby Lobby and Mardel express themselves for religious purposes, the First Amendment logic of Citizens United, where the Supreme Court has recognized a First Amendment right of for-profit corporations to express themselves for political purposes, applies as well. We see no reason the Supreme Court would recognize constitutional protection for a corporation's political expression but not its religious expression.

We also believe that a constitutional distinction would conflict with the Supreme Court's Free Exercise precedent. First, we cannot see why an individual operating for-profit retains Free Exercise protections but an individual who incorporates — even as the sole shareholder — does not, even though he engages in the exact same activities as before. This cannot be about the protections of the corporate form, such as limited liability and tax rates. Religious associations can incorporate, gain those protections, and nonetheless retain their Free Exercise rights....

In addition, sincerely religious persons could find a connection between the exercise of religion and the pursuit of profit. Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices? The kosher butcher, of course, might directly serve a religious community — as Mardel, a Christian bookstore, does here. But we see no reason why one must orient one's business toward a religious community to preserve Free Exercise protections. A religious individual may enter the for-profit realm intending to demonstrate to the marketplace that a corporation can succeed financially while adhering to religious values. As a court, we do not see how we can distinguish this form of evangelism from any other.

...The government nonetheless raises the specter of future cases in which, for example, a large publicly traded corporation tries to assert religious rights under RFRA. That would certainly seem to raise difficult questions of how to determine the corporation's sincerity of belief. But that is not an issue here. Hobby Lobby and Mardel are not publicly traded corporations; they are closely held family businesses with an explicit Christian mission as defined in their governing principles. The Greens, moreover, have associated through Hobby Lobby and Mardel with the intent to provide goods and services while adhering to Christian standards as they see them, and they have made business decisions according to those standards. And the Greens are unanimous in their belief that the contraceptive-coverage requirement violates the religious values they attempt to follow in operating Hobby Lobby and Mardel. It is hard to compare them to a large, publicly traded corporation, and the difference seems obvious. Thus, we do not share any concerns that our holding would prevent courts from distinguishing businesses that are not eligible for RFRA's protections.

And as for the burden issues:
[W]e turn to the question of whether the government places substantial pressure on the religious believer. Here, it is difficult to characterize the pressure as anything but substantial. To the extent Hobby Lobby and Mardel provide a health plan, they would be fined $100 per employee, per day the plan does not meet the contraceptive — coverage requirement. With over 13,000 employees, that comes to more than $1.3 million per day, or close to $475 million per year. And if Hobby Lobby and Mardel simply stop offering a health plan — dropping health insurance for more than 13,000 employees — then the companies must pay about $26 million per year, and put themselves "at a competitive disadvantage in [their] efforts to recruit and retain employees,."

With this dilemma created by the statute, we believe that Hobby Lobby and Mardel have made a threshold showing regarding a substantial burden. ... Hobby Lobby and Mardel incurred a substantial burden on their ability to exercise their religion because the law requires Hobby Lobby and Mardel to:

• compromise their religious beliefs,
• pay close to $475 million more in taxes every year, or
• pay roughly $26 million more in annual taxes and drop health-insurance benefits for all employees.

This is precisely the sort of Hobson's choice described in Abdulhaseeb, and Hobby Lobby and Mardel have established a substantial burden as a matter of law.... It is not the employees' health care decisions that burden the corporations' religious beliefs, but the government's demand that Hobby Lobby and Mardel enable access to contraceptives that Hobby Lobby and Mardel deem morally problematic.

Finally, is the government's interest compelling?
[T]he interest here cannot be compelling because the contraceptive-coverage requirement presently does not apply to tens of millions of people. As noted above, this exempted population includes those working for private employers with grandfathered plans, for employers with fewer than fifty employees, and, under a proposed rule, for colleges and universities run by religious institutions. As the Supreme Court has said, "a law cannot be regarded as protecting an interest of the highest order when it leaves appreciable damage to that supposedly vital interest unprohibited."
Finally, we note a concern raised both at oral argument and in the government's briefing that Hobby Lobby and Mardel are, in effect, imposing their religious views on their employees or otherwise burdening their employees' religious beliefs. But Hobby Lobby and Mardel do not prevent employees from using their own money to purchase the four contraceptives at issue here.

Of course, employees of Hobby Lobby and Mardel seeking any of these four contraceptive methods would face an economic burden not shared by employees of companies that cover all twenty methods. But the government must show why the employees' burden creates a compelling interest that can only be met by requiring the corporations to conform to a mandate.

The case will likely be argued in March 2014, with a decision by June.

Originally posted to Adam B on Tue Nov 26, 2013 at 03:18 PM PST.

Also republished by This Week in the War on Women and Daily Kos.

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