Blog No. 22. Obamacare and Contraception: Science, Freedom of Religion and Politics

The Supreme Court has agreed to hear two cases challenging the requirement of the Affordable Care Act (ACA) that insurance plans provided by employers must include coverage for certain contraceptive drugs and devices. Circuit courts hade reached conflicting decisions as to whether that requirement infringes the rights of corporate employers or their stockholders under the Religious Freedom Restoration Act (RFRA), and the Court will resolve that conflict.  The cases raise interesting legal questions and, like most of the more interesting cases in the Supreme Court, they have stimulated political reactions of which more no doubt lie ahead. RINOcracy.com will not predict how the Court will rule, or even take a firm position as to how it should, but will merely attempt to clarify the issues.  As a political issue, however, we will suggest that the cases probably represent more of a risk than an opportunity for Republicans and that they should treat  the Court’s eventual decision with some caution.

As a threshold matter, RINOcracy.com strongly supports access to contraception and government policies that seek to provide or facilitate such access. To begin with, access to contraception is, among other things, key to avoiding abortions. For example, the Guttmacher Institute has reported that “About half of all pregnancies in the United States each year—more than three million—are unintended. By age 45, more than half of all American women will have experienced an unintended pregnancy, and three in 10 will have had an abortion.”  Similarly, Republican Majority for Choice has emphasized that effective family planning policies, which include access to contraception, are “the best way to prevent unintended pregnancies and teen pregnancies and drastically reduce the rate and incidence of abortion nationwide.”

Access to contraception is frequently described as a “women’s right” or “women’s issue,” and so it is, but it also has economic implications for their families and for the country. A recent study found evidence showing that “individuals’ access to contraceptives increased their children’s college completion, labor force participation, wages, and family incomes decades later.”

In terms of cost to the public borne by federal and state governments from unwanted pregnancies, Guttmacher found that “Public expenditures on these births—including costs of prenatal care, labor and delivery, postpartum care and one year of care for the infant—totaled $12.5 billion in 2008. These births accounted for 53% of all publicly funded births that year.”

At the same time, RINOcracy.com admits to having some sympathy for claims under RFRA and the First Amendment that seek to defend the free exercise of religion. As a personal matter, the writer once represented St. Bartholomew’s Church as it asserted claims under the First Amendment in seeking relief from rulings of the New York City Landmarks Commission. While the litigation was proceeding in 1990, the Church’s claims were fatally undermined by an unexpected decision of the Supreme Court in Employment Division v. Smith. As will be briefly explained below, the opinion of the Court by Justice Scalia in that case significantly narrowed the protection afforded the free exercise of religion by the First Amendment. That decision then gave rise to RFRA, which sought to restored, as a statutory right, the constitutional standard that the Court had previously applied to free exercise claims.

The Legal Issues

The cases presently pending before the Supreme Court are Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sibelius. Hobby Lobby is a craft store chain, and another party to the case, Mardel, is a Christian bookstore chain owned by the same family; Conestoga is a wood cabinet manufacturer. All three corporations are closely held and are managed by the families that own them. Both of the pending cases involve claims that the contraceptive mandate of the ACA violates the free exercise rights of both the corporate employers and their stockholders. Hobby Lobby was decided in favor of the employer and its shareholders, while Conestoga was decided in the government’s favor.  Here it is worth pointing out that the objections were not raised against all contraceptives but only to those claimed to be “abortifacients,” a term that includes the morning-after pills, Plan B and Ella, and intrauterine devices. The objection to such drugs and devices is based on the belief that they do not prevent conception, i.e., fertilization of an egg, but prevent a fertilized egg from being implanted in the womb. For those who believe that human life begins at fertilization (a belief that RINOcracy.com does not share, but respects), the ensuing demise of the fertilized egg is tantamount to an abortion.

Significantly, medical evidence now appears to show convincingly that in fact neither the drugs nor the devices in question prevent implantation. Curiously, however, the government has not attempted to make that point and, to the contrary, in Sibelius has even cited an FDA regulation and an FDA publication that do not reflect the current research. Physicians for Reproductive Health filed an amicus curiae (friend of the court)  brief in support of the government’s petiton for certiorari seeking review by the Supreme Court  and it explains in great detail why the drugs and devices at issue are not abortifacients. This, however, is evidence that should have been presented to the District Court and it is hard to know what, if anything, the Supreme Court can make of it at this point. To the extent that constitutional challenges have arisen from a misunderstanding of the underlying science, it is truly unfortunate. Still, as long as there is some evidence on either side, courts may be reluctant to test religious beliefs against scientific consensus.

In the courts below, Hobby Lobby and Conestoga involved an intricate mix of substantive and procedural issues.  The issues before the Supreme Court, however, are narrower. In Sebelius, the question presented by the government’s petition is “whether RFRA allows a for-profit corporation to deny its employees the health coverage of contraceptives to which the employees are otherwise entitled by [the ACA], based on the religious objections of the corporation’s owners.” The question presented in Conestoga was similar, but more broadly worded to place before the court claims under the First Amendment as well as RFRA. It also reflected the perspective of the corporation and its owners: “[w]hether the religious owners of a family business, or their closely-held, for-profit corporation, have free exercise rights that are violated by the application of the contraceptive-coverage mandate of the ACA.”

What follows below is by no means a comprehensive legal analysis, but may provide some insight into the competing arguments. (It is based on a review of the circuit court opinions and the briefs filed by the parties with respect to the petitions for certiorari which asked the Supreme Court  to review the cases.  Now that the Court has granted certiorari and agreed to hear the cases, more extensive briefs will be filed by the parties as well as by various “friends of the court” before the cases are argued next spring.)

RFRA: The Standard

RFRA provides that the government shall not substantially burden a person’s exercise of religion unless the burden serves a compelling governmental interest, and is the least restrictive means of furthering that interest. In so providing, RFRA restored the standard that had been applied by the Supreme Court prior to the decision of the Court in Employment Division v. Smith. In Smith, Justice Scalia led the Court to adopt a narrower standard under which a compelling interest need not be shown so long as the burden on religion is imposed by a neutral law of general applicability. Because the Scalia standard provided conspicuously less protection to the free exercise of religion, Smith provoked widespread objections in the religious community and quickly led to the nearly unanimous passage of RFRA through both houses of Congress. The “exercise of religion” under RFRA, as under prior law, includes not only worship or prayer, but religiously motivated conduct (e.g. refusing to work on the Sabbath).

RFRA: Are the Employer Corporations “Persons”?

RFRA extends protection to “a person’s” exercise of religion, and the government insists that the employer corporations are not persons, and derive no rights from the act. In Hobby Lobby, however, the Tenth Circuit pointed to numerous statutes under which corporations have been treated as persons.  If it seems odd to think of a business corporation engaged in the free exercise of religion, it may be noted that both Hobby Lobby and Mardel have clearly expressed their owners’ religious values in statements of corporate purpose and both are managed in accordance with those values.  It is fair to say that there are arguable precedents and plausible arguments on both sides of the issue. The government points out that prior to litigation over the ACA, a right of religious freedom in a secular, for-profit corporation has not been generally recognized, and insists that no such right exists. On the other hand, there has been little occasion to consider the existence of such a right, so lack of prior recognition  does not necessarily resolve the issue. (Ironically, the argument is somewhat analogous to the one advanced in the earlier challenge to Obamacare: that the Commerce Clause had never been held to authorize a mandate to purchase a product or service.)

Freedom of Religion and Corporate Stockholders

The position of the government is that the impact of the ACA mandate falls only on the corporate entity and that any impact on its owners is at most indirect. Thus, it is argued, no relief is available under either the RFRA or the First Amendment. That argument places great weight on traditional corporate law which, for purposes of limiting liability, allows the creation of entities from which their stockholders are insulated. Even under traditional corporate law, however, there are circumstances in which it is possible to “pierce the corporate veil” or otherwise disregard the corporate entity. And in the context of religious freedom and closely-held family companies, rigid adherence to corporate form appears to elevate form over substance. The employer corporations can only act in compliance with the law through directions given by their owners who are not only stockholders, but run the businesses. And if the corporations fail to provide the mandated coverage, because their owners so decide, the resulting penalties amounting to many millions of dollars will have serious financial consequences that will certainly impact thoser owners.

RFRA: Substantial Burden and Compelling Interest

If the employer corporations or their stockholders are held to be within the protection of RFRA, obtaining relief from the ACA mandate further requires proof that the mandate places a serious burden on their exercise of religion. (The Tenth Circuit held in Hobby Lobby that such a burden had been shown, but the Third Circuit did not reach that issue in Conestoga.) It appears that a strong argument can be made that the mandate does impose a serious burden in requiring the corporations to provide insurance for drugs or devices that their owners and managers believe are contrary to their religious principles, or face severe financial penalties.  The government’s principal argument to the contrary–that the actual choice of a contraceptive remains with the patient and her doctor—seems unpersuasive.

If a substantial burden is shown, the government can still uphold the ACA mandate by showing that it furthers a compelling governmental interest and is the least restrictive (or intrusive) means of doing so. In Sebelius, the argument in the government’s petition rests largely on generalizations as to the importance of the “promotion of public health,” “preventive services for women” and “comprehensive” coverage. While those are all clearly important interests, it may be less clear that there is a compelling interest in furnishing the four particular drugs and devices at issue, and in doing so by means of mandated insurance coverage.

Neither the circuit court in Hobby Lobby nor the certiorari briefs of parties offered a very helpful analysis of whether the mandated coverage was the least intrusive means of providing access to the disputed drugs and devices. Presumably this issue will get more attention when the cases are fully briefed. Certainly there are other means available, by direct financial assistance or tax credits or deductions, for example, but the feasibility of those alternatives remains to be illumined.

The First Amendment:  Is the ACA a Neutral, Generally Applicable Law?

Because the Tenth Circuit did not reach the issue of claims under the First Amendment in Hobby Lobby, the issue is not before the Supreme Court in that case. In Conestoga, however, the Third Circuit did rule on the asserted First Amendment claims and those claims are included in the questions presented to the Court by the petitioners. Nevertheless, it is not clear what if anything those claims add to their case. The government itself appeared perplexed, noting that prevailing under RFRA would give the petitioners all the relief they seek. It is also difficult to see how they might be unsuccessful under RFRA and still have a viable constitutional claim.

Nevertheless, the petition for Conestoga and its owners briefly argued that they met the standard established by Justice Scalia in Smith. Specifically, it asserted that the law was not “generally applicable” because of the availability of various exemptions (e.g, grandfathered plans). This, however, is an argument of doubtful force in that the thrust of Smith and later decisions is that generally applicable means equally applicable to religious and secular persons and entities. It is likely that the success or failure of petitioners’ cause will depend on how it fares under RFRA.

The Politics

The disposition of the cases by the Supreme Court seems unlikely to have a major impact on the functioning of Obamacare. It may well, however, become a fodder for political debate, and here is where Republicans should exercise restraint. A number of elected Republicans, including John Boehner have urged that the ACA mandate be stricken as a matter of religious freedom. Nine Senators, including Senator McConnell, and two Representatives filed an amicus curiae brief in support of Hobby Lobby when its case was  before Tenth Circuit and they, and perhaps others, may file a brief before the Supreme Court.  Fair enough. Setting aside the possible mistake as to what constitutes an abortifacient, there are quite legitimate reasons why one might take that position.

Once the case is decided, however, Republicans must avoid crowing if the mandate is invalidated or attacking the Court if it is not. However the Court resolves the case, there is little likelihood that the decision will suggest or justify legislative action. Hence, any comment will be intended to serve purely political purposes. But to what end? Those who feel most aggrieved by the mandate, religious conservatives, are very likely part of the Republican base already and need no ardent wooing. On the other hand, Republican posturing on the issue can easily be depicted in a way (“anti-contraception”) that further damages our image with women voters of a different persuasion.

Republicans have been accused, all too often and all too effectively, of waging a “war on women.” That is, of course, a distortion: there are many women who strongly agree with positions taken by Republicans on various social issues, including abortion. Nevertheless, there are many who do not and they are a major cause of the declining support of women for the Republican Party. Hence the importance of avoiding insensitive rhetoric.