Hobby Lobby, Religion and Obamacare- Part 2

{Note: As brought to my attention, oral argument is scheduled for March 25th, not next week.  Next week, there are no oral stguments scheduled}

In 1998, Sylvia Law, a professor at New York University School of Law, penned an article which has held great weight in legal circles, especially feminist legal circles and, by extension, liberal circles.  In this article, she asserted that the denial of contraceptive services in health care plans was a de facto form of sex discrimination.  Using a variety of metrics, she determined that a woman’s pay is decreased because of the higher medical costs and out-of-pocket payments for purchasing contraceptive devices because they were treated differently than other prescription drugs.  We can debate the economic analysis used and the metrics all we want, but the fact is that this article and resulting theory caught on. In fact, it caught the attention of Congress early in the 2000’s as they grappled with leveling the playing field in terms of prescription drugs by attempting to enact legislation.  What resulted was a very stripped down version of the original draft because Congress at the time felt that certain provisions may unjustifiably burden religious views, practices and dogmas.  Several states- 28 in all- did enact these laws which, incidentally, drove up premium rates for all in the affected states.  Yet even in such liberal states as California and New York, religious exemptions were written into the laws.  Clearly, legislators at both the federal and state level realized that regulating contraceptive services in health care plans had serious religious exercise implications as early as 1999.  However, the Affordable Care Act wiped all those aside in one fell swoop, consequences be damned.

In liberal circles, one will hear the statement that an employee does not surrender their personal liberties at the front door of the employer.  However, if one is to elevate access to contraception in a health care plan provided by an employer to the status of  “personal liberty,” then your name is likely Sandra Fluke.  There are a couple things wrong with this statement.  First, no one is asking anyone to surrender anything.  As stated in the previous article, neither Hobby Lobby nor Conestoga Wood nor any of the other 40 or so businesses challenging this law on religious grounds is making Christianity a condition of employment.  Nor are they discriminating against any client or patron on religious grounds.  Second, the more important question as concerns this case has nothing to do with the employee.  The better question is:  Do business owners- especially in privately held companies- surrender their personal liberties by virtue of incorporation?

Ironically, in the words of Justice Scalia in Employment Division vs. Smith in 1990 the answer was “Yes.”  However, Congress addressed that issue by passing the Religious Freedom Restoration Act (RFRA)- a law passed almost unanimously on a bipartisan basis and signed into law by a Democratic president (Clinton) in 1993.  Thus it would appear that if employers are to afford employees accommodations to freely exercise their religion- an overlooked fact and result of the Smith decision- then it stands to reason that employers are free to do so also, especially privately held companies.  We can revisit the “Is a corporation a person?” argument all over again.  When the issue of somehow evening the playing field was addressed, Congress could have specifically excluded corporations as they have in a plethora of other pieces of legislation, but they chose not to.  Hence, it logically stands to reason that as a result of the RFRA the answer to the question is now “No,” corporations do not surrender their religious liberty rights by virtue of incorporation and this is particularly true of privately held companies.

Under the RFRA, the government can prevail if it can prove that the method used or the regulation adopted or the law passed is “the least restrictive means” of accomplishing a “compelling governmental interest.”  Let’s just concede that health care reform is a compelling governmental interest despite the merits of the ACA.  This is where liberals get stuck- the “compelling governmental interest.”  It is as if they never read before or after that phrase.  The most appropriate question is whether the regulation is the least restrictive means and here, the answer is that it is clearly not.  Right from the start, the government practically admits that there is a burden since they exclude non-profit organizations- many of them incorporated- for the very reasons Hobby Lobby and others now seek exemptions.  Furthermore, the government has essentially waived any claim to the fact that these are the least restrictive means since they have on numerous occasions granted waivers and exemptions for no other reason than administrative convenience.  In this case, a privately-held company is asking that only four of 20 drugs be exempted in health care prescription coverage because their use violates and offends their religious beliefs.

The government contends that the mandate is not on employers per se, but on insurers.  But, if the insurers have this mandate- and all plans do- and the employer offers health benefits, then by fiat the mandate is on the employer under threat of heavy penalties that could potentially bankrupt many businesses.  If the only legal health care policy according to the HHS guidelines authorized under the ACA contain these provisions, the mandate is indirectly not only on businesses, but on every American with a health care plan- corporation or not.  This is like the government telling a business, “Well, you really do not have to file a tax return.  You have free will and you are free to exercise it” knowing full well you can be fined and assessed penalties.  The only options available to Hobby Lobby and other such businesses are to drop health care coverage altogether and receive fines and penalties, or reduce your workforce to under 50.  Neither option is palatable to a multi-state employer of over 5,000 people.

The government contends there is no theological difference between the employee who uses their paycheck to purchase an abortificent and one that receives it through their health care plan provided by the employer.  Put another way, forcing employers to provide them through health care plans is too indirect an imposition on religious beliefs and there is no legal or constitutional problem.  This comes very dangerously close to government telling religions what is or is not religiously significant.  In fact, most religions reject the distinction the government is trying to establish here.

What is disturbing here is the lack of a governmental limiting principle.  Their argument is that by virtue of incorporation and being for-profit, an entity cannot exercise Free Exercise rights.  Yet think of this: The New York Times is a corporation and it is a for-profit one.  Do they surrender their Free Speech rights?  What of the Jewish deli or slaughterhouse that is a corporation for profit?  Are they under a mandate to sell or process non-kosher foods?  What of the incorporated Muslim bank that lends money without interest?  Is that religiously insignificant also?

In short, it would behoove this Supreme Court to remember their commitment to freedom of conscience.  If it is a question of religious belief versus a public education, the Court has ruled that a mandatory, obligatory Pledge of Allegiance is unconstitutional and antithetical to established jurisprudence.  Forcing a family-run business (and Hobby Lobby clearly is family-run) to compromise their religious beliefs over four drugs or face heavy fines that could bankrupt the business works under the same principle in the Pledge example.

It is difficult to handicap the outcome of this case.  This writer would be surprised if it is anything but a 5-4 decision.  Whether the concept of publicly held versus privately held corporations will even be discussed is unknown.  This writer will follow up with analysis after oral argument to see if anything can be gleaned from it as to the direction of the Court.  My initial guess is that the conservatives will hold the majority with Kennedy the deciding vote, but that the actual decision will be narrowly tailored to address a small handful of businesses which may be a good thing.  I would rue the day when HHS or the IRS inquires into the religious beliefs of a business owner in order to grant a waiver or exemption from a bad mandate enacted as the result of a bad piece of legislation.