Sides Drawn in Contraception Cases


The question of whether for-profit corporations may be exempted based on religious objections from the contraception mandate in the Affordable Care Act (ACA) inched toward resolution Tuesday with a flurry of legal briefs from members of Congress and advocacy groups both in support of and against the mandate.

House Minority Leader Nancy Pelosi (D-CA) and 90 other House Democrats filed an amicus brief explaining the legislative history of the ACA and how its contraception coverage requirement does not violate the free exercise of religion under the Religious Freedom Restoration Act (RFRA). In addition, Sen. Patty Murray (D-WA) led 18 other Senate Democrats in filing an amicus brief in support of the Obama administration and the mandate.

“Allowing a woman’s boss to call the shots about her access to birth control should be inconceivable to all Americans in this day and age, and takes us back to a place in history when women had no voice or choice,” Murray said in a statement announcing the brief.

That theme of women being able to exercise more control over their lives thanks to the contraceptive benefit was a theme picked up in the amicus brief filed by the National Women’s Law Center (NWLC) on behalf of itself and 68 other national, state, and regional organizations that support women’s access to insurance coverage for comprehensive reproductive health care. “The ACA’s birth control provision is already benefiting more than 27 million women, protecting their ability to control their reproductive lives and get preventive health services without interference from their bosses,” said NWLC Co-President Marcia Greenberger in a statement. “This requirement helps prevent unintended pregnancies by ensuring that women can obtain the forms of birth control that best fit their lives, thus promoting women’s health and participation in society.

Republican opposition to the mandate was led by Sen. Orrin Hatch of Utah, who filed a brief on behalf of 15 House and Senate Republicans who argue preventing businesses from blocking health insurance benefits for their employees “turns the law of religious freedom upside down.” Meanwhile, Sen. Ted Cruz (R-TX), joined by Sens. John Cornyn (R-TX), Mike Lee (R-UT), and David Vitter (R-LA), filed a brief and conflated lax prosecution of Wall Street fraud with unlawfully targeting religious beliefs. “The First Amendment guarantees every American the right to free exercise of religion,” Cruz and his fellow senators argue in their brief. “Yet, the Obama Administration has chosen repeatedly to break the law by giving breaks to big businesses and Congress, while refusing to grant those same waivers to people with sincerely held religious beliefs.”

The question of whether or not there’s a substantial government interest in requiring employers who offer health insurance to offer a plan that includes comprehensive reproductive health-care coverage was also addressed in the briefing to the Supreme Court. The Center for Reproductive Rights and the amici it represents put the battle over insurance coverage for comprehensive reproductive health care in a global context, arguing that women’s access to affordable contraception has been consistently recognized as key to furthering a woman’s liberty, dignity, and equality.

It wasn’t just members of Congress and advocacy organizations hoping to influence the Roberts Court; Massachusetts Attorney General Martha Coakley, along with California Attorney General Kamala Harris, led a coalition of states in arguing that businesses cannot exercise religion, and that a company’s identity is legally distinct from its shareholders and managers. According to the brief, states, like the federal government, have a compelling interest in promoting public health and gender equity through the contraceptive mandate, which outweighs any purported burden on free-exercise rights claimed by for-profit corporations under the Religious Freedom Restoration Act. As argued in the brief, “allowing individual shareholders to assert personal free-exercise rights as a basis for limiting public regulation of the corporation, despite the choice they previously made to hold and conduct their business in corporate form, would require overriding settled principles of state corporate law.”

The multistate brief also points out an often-overlooked need for the ACA. According to the brief, a total of 28 states have similar laws that require contraceptive coverage and other health benefits. But those laws are limited in their effect because most employee benefits plans are regulated by the federal Employee Retirement Income Security Act (ERISA). As a result, the ACA’s mandate is needed to ensure that most employers’ health-care plans offer contraceptive coverage, which can translate into significant economic benefits for women in addition to the health benefits of increased access to care. According to the multistate brief, requiring coverage helps to equalize the cost of health care for women of reproductive age, who spend 68 percent more out of pocket than men on health care.

Arguments in the Hobby Lobby and Conestoga Wood Specialties cases are scheduled for March 25.

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  • fiona64


    Massachusetts Attorney General Martha Coakley, along with California Attorney General Kamala Harris, led a coalition of states in arguing
    that businesses cannot exercise religion, and that a company’s identity
    is legally distinct from its shareholders and managers.

    Yep; that’s Business School 101.

    • xuinkrbin

      Curious, I know of no law which says, for example, I can exercise religion while working as an Employee (like in Sherbert and Thomas), as a Contractor, and as the Owner of a sole proprietorship but not as the Owner of a corporation. This principle would also mean churches are never exercising religion since they are typically organized as corporations; nonprofit corporations but corporations nonetheless.

      • fiona64

        When you set up a business, you are creating a fictitious “person” to separate your personal assets from those of the organization. Your fictitious “person” is not able to have religious rights because it is not a real person. Religious liberty is for actual persons, not corporations.

        Churches are organized as 501c(3) non-profits, BTW. That’s not the same as articles of incorporation for a for-profit business.

        I’m sorry that this is so hard for you to understand.

      • Bridgette Dunlap

        In the case of churches, the corporation still doesn’t practice religion–its members do. It makes sense that a church should have associational standing to represent the human believers that join it. That is different than conflating the separate identities of a corporation and its shareholders (or its trustees or whoever the humans are supposed to be with the relevant belief in the non-profit cases).

      • lady_black

        For profit and not for profit corporations have undergone a legal process (incorporation) to create a new legal “person” separate and distinct from the owners/shareholders. This arrangement shields the private assets of the owners/shareholders from liability. This is known as the “corporate veil.” It can only be pierced in the event of criminal liability, not civil liability. By the same legal separation, the owners/shareholders cannot cross back over the corporate veil to claim that for the purposes of RELIGION, they and the corporation are one and the same. That is trying to “have” your cake, and eat it too. You can only do one or the other.

        • Bridgette Dunlap

          It can be pierced for civil liability, too. So if Hobby Lobby does something negligent, the CEO’s $5 billion should be up for grabs. ;)

          • lady_black

            Maybe for extremely outrageous and egregious conduct. Generally not. The point is that an owner/shareholder can not claim to simultaneously the corporation and NOT the corporation.

          • Bridgette Dunlap

            Veil-piercing is very rare in criminal cases, far more prevalent in civil tort and contract cases.

      • colleen2

        I know of no law that allows an employer to impose his religious beliefs on his female employers. But then, unlike the religious right, we believe that women are persons too and thus entitled to freedom of religion and conscience. I DO understand that the churches of the religious right don’t allow women freedom of religion or conscience but that’s part of the reason why the divorce rates are so high amongst the Family Values crowd.

      • Jennifer Jonsson

        Um. The corporation exists for one reason only: To make money. The nonprofit corporation exists for one reason only: To deflect individual liability if anything goes wrong.