In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court ruled Monday that it violates the Religious Freedom Restoration Act (RFRA) for the Department of Health & Human Services (HHS) to require religious business owners to provide contraceptive and abortifacient coverage for their employees. HHS imposed the birth control requirement as a regulation issued under the 2010 healthcare law popularly known as Obamacare.
I previously explained how the requirement violates RFRA, since the requirement substantially burdened the free exercise of religion, and was not the least restrictive means of advancing a compelling governmental interest (see here, here, and here). RFRA, which Congress enacted by an overwhelming bipartisan majority in 1993, requires religious exemptions to federal regulations under such circumstances. (RFRA used to require such exemptions to state laws, not just federal laws, but the Supreme Court struck down RFRA’s application to state law on federalism grounds in 1997, holding that RFRA encroached too deeply on state sovereignty. By contrast, the Supreme Court continued to uphold RFRA against federal regulations that restricted religious practices in ways not essential to vital government interests, such as ruling in favor of Native American claimants seeking to use controlled substances in their religious ceremonies, in its 2006 decision in Gonzales v. O Centro Espirita.)
The Supreme Court’s Hobby Lobby decision ruled that RFRA applies to regulations that govern the activities of closely held for-profit corporations like Hobby Lobby. The Obama administration made the catch-22 argument that such companies cannot sue because they are for-profit corporations, and that their owners cannot sue because the regulations apply only to the companies. That would leave no one who could sue over a RFRA violation. But as the Court noted, nothing in RFRA suggests a congressional intent to depart from the Dictionary Act definition of “person,” which “include[s] corporations, . . . as well as individuals.” 1 U.S.C. §1. Moreover, the Court’s earlier decision in favor of Native Americans in Gonzales had also involved a RFRA claim brought by a corporation, albeit a nonprofit. Indeed, churches themselves are commonly incorporated.
RFRA is a statute, but corporations have also been held to be entitled to most (although not all) constitutional rights under Supreme Court decisions dating back almost to the founding fathers, such as Dartmouth College v. Woodward (1819). Moreover, as associations of persons, corporations have also been held entitled to protection under international human-rights accords like the European Convention on Human Rights.
It should be noted that I am not in any way hostile to contraception. (And one of my co-workers, a lawyer who agrees with me about the legality of the contraceptive mandate, supported making Plan B contraception publicly available without a prescription). After I was interviewed about this subject in the past, I received testy emails from uninformed people telling me not to impose my “religion,” and the teachings of my “church” on other people. While I have no personal objections whatsoever to contraception, I don’t seek to impose my own approval of contraception on churches that have objections to them. The wisdom of religious beliefs is immaterial for purposes of whether the Constitution or RFRA protects them. As the Supreme Court has emphasized, “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” See Thomas v. Review Board, 450 U.S. 707, 714 (1981). Thus, this is not, as some of those who have contacted me view it, about restricting people’s “sexual choices.” People can afford to pay for their own contraception, as my own family can attest. The Obama administration has provided ludicrously inflated estimates of the lifetime cost of contraceptives, but even under its estimates, virtually everyone can afford them. It would be cheaper still if the government would reduce regulation of contraceptives, such as allowing more oral contraceptives to be sold over the counter. It is not a restriction on “women’s sexual choices” to let people pay for their own contraceptives, rather than forcing their employer or insurer to pay for it.
To impose the contraception mandate, the Obama administration issued a regulation under the Affordable Care Act. Other Obamacare mandates that are more costly have led some employers to stop hiring or lay off employees, and others are getting rid of full-time employees and replacing them with part-timers to avoid Obamacare mandates that apply to full-time employees. Obamacare has wiped out jobs in the medical device industry through what even liberal Sen. Al Franken, D-Minn., conceded was a “job-killing tax” that will “impair American competitiveness in the medical device field.”
