COMMENTARY ON LAWYERING, LANGUAGE, AND POLITICS
Sunday, March 16, 2014
No Private Business Exception for Birth Control `Mandate' //NJ Law Journal Editorial
The "morning after pill"
The United States Supreme Court will hear argument later this month in a challenge to the misnamed 'birth control mandate'. Two private businesses owned by religious objectors assert an exemption from a general law: the `Obamacare' requirement of free birth control to all women under health insurance plans. - GWC Limits of Free Exercise by the Editorial Board, New Jersey Law Journal (c) American Lawyer Media March 14, 2014
The Affordable Care Act has become a symbol. Its broad reforms of our health insurance system excite loyalty and loathing. It barely survived its first constitutional challenge when, in NFIB v. Sebelius, a bare majority of the Supreme Court upheld the mandate to purchase health insurance in a federally regulated private market. The ACA's requirement that certain preventive services be included "without cost sharing" compels health plans to provide FDA-approved methods of contraception. This has incited determined opposition by some who assert religious objections to some or all artificial birth control methods. The Supreme Court has agreed to hear two such challenges—one from the 10th Circuit (in favor of the challengers) and the other from the Third Circuit (against).
The ACA creates a general right to affordable, accessible health care. And certain benefits are mandated in all compliant plans and policies. The challengers rely on the Religious Freedom Restoration Act (RFRA), passed in direct response to the Supreme Court's 1990 decision in Employment Division v. Smith. In a challenge to the denial of unemployment benefits based on unlawful religious ritual use of peyote, the Smith court held that the free exercise clause does not prohibit the government from enforcing a generally applicable law that burdens a religious practice but that is not specifically directed at the religious practice itself.
The RFRA declares: "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability, except…if it demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest."
The challengers to the contraceptive mandate therefore must demonstrate that they are so burdened and that the exemption they seek will not unnecessarily obstruct furtherance of a compelling governmental interest. The ACA provides plans "shall, at a minimum provide coverage for and shall not impose any cost sharing requirements" on certain preventive services. Regulations from the Department of Health and Human Services (DHHS) extend that requirement to all contraceptive means approved by the FDA.
The government has shown women and children's health and autonomy are importantly served by the measure. DHHS has relied on an Institute of Medicine study that found: "In addition to protecting a woman's compelling interest in autonomy over her procreation access to contraceptives is a crucial public health protection because an unintended pregnancy can have major negative health consequences for both the woman and the developing fetus. The Institute of Medicine described the harms to the woman and fetus that can occur when pregnancies are unintended. For example, short intervals between pregnancies are associated with low birth weight and prematurity. When a pregnancy is unintended, a woman may delay prenatal care or prolong behaviors that present risks for the developing fetus. And, for women with certain medical conditions (such as diabetes), pregnancy can pose serious health risks."
The objectors assert the right to deny these benefits on the ground it burdens their conscience as business owners who must pay for them. They seek to shift responsibility to their employees, or perhaps the taxpayers.
The 10th Circuit case was brought by Hobby Lobby Stores Inc.—a chain of arts and crafts stores with 13,000 employees—and its owners. Although Hobby Lobby does not hire employees on the basis of their religion, its Christian owners say they operate the business "in a manner consistent with Biblical principles." After learning about the contraceptive mandate, the company "re-examined its insurance policies" and expressly excluded—on religious grounds—certain contraceptives from its employee health plan, all of which had previously been covered. Their suit claims that what they had previously found unobjectionable now impermissibly burdens their exercise of religion.
The district court rejected Hobby Lobby's claims, concluding that secular, for-profit corporations "are not 'persons' for purposes of RFRA." But the court of appeals reversed, ruling that the mandate is likely to be struck down as applied to the corporation as violative of the RFRA. The dissenters found "no plausible basis for inferring that Congress intended or could have anticipated that for-profit corporations would be covered by RFRA."
The Third Circuit case was brought by Conestoga Wood Specialties Corporation, a Pennsylvania-based manufacturer of wood cabinets that employs approximately 950 employees, and its Mennonite owners. The owners object to two types of FDA-approved contraceptives, which they abhor because they "may cause the demise of an already conceived but not yet attached human embryo." A divided appeals panel rejected the 10th Circuit's rationale, reasoning that "for-profit, secular corporations cannot engage in religious exercise." The court also rejected the owners' individual RFRA and Free Exercise Clause claims—brought pursuant to a theory in which religious beliefs "pass through" to the corporation they own. Because "Conestoga is distinct from the owners, the Mandate does not actually require the [owners] to do anything," the Third Circuit declared.
We do not question the sincerity of the challengers' view that the mandate makes them complicit in sinful conduct by their employees. But the government has the better argument. Since Griswold v. Connecticut, the use of contraceptives has been recognized as a personal right founded in privacy. The ACA compels no one to use contraception but merely mandates its inclusion in employer-provided health plans.
In an attempt to narrowly tailor the law, the DHHS has reasonably exempted "religious employers" from the mandate's reach and afforded a religion-based accommodation for other nonprofit religious organizations. The accommodation requires the insurer or third-party administrator of an objecting nonprofit religious organization's health plan—and not the organization itself—to arrange for "payments for contraceptive services" for employees without imposing any cost-sharing requirements (such as deductibles or co-payments).
We, too, are persuaded that secular, for-profit corporations are not "persons" exercising religion within the meaning of the RFRA. As the dissenters in Hobby Lobby observed, "during the 200-year span between the adoption of the First Amendment and RFRA's passage, the Supreme Court consistently treated free exercise rights as confined to individuals and non-profit religious organizations." Since all indications are that Congress passed the RFRA simply to restore what it believed to be the law concerning free exercise of religion prior to Smith—and not to expand that law—we believe that the most appropriate interpretation of RFRA would be similarly to limit application of the statute to individuals and nonprofit religious organizations, and not extend it to for-profit corporations. The requirement is narrowly drawn. It exempts religious organizations, and the only alternatives are imposing the costs on the employees or the public to further the government's compelling interest in making these lawful contraceptives freely available to all who need them.
The owners of closely held corporations should not be permitted to disregard the well-established distinction between individuals and corporations so as to impose the owners' religious beliefs on their employees, and make the owners' religious beliefs the creed of the corporation. We agree with the Third Circuit majority that "[i]t is a fundamental principle that incorporation's basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created the corporation."
Additionally, any burden on nonexempt corporations is attenuated at best. As a dissenting circuit judge noted in a separate challenge to the contraceptive mandate that is not among the cases that will be heard by the Supreme Court this term, a corporation's owners are "in both law and fact, separated by multiple steps from both the coverage that the company health plan provides and from the decisions that individual employees make in consultation with their physicians as to what covered services they will use." Grote v. Sebelius, 708 F.3d 850, 858 (Rovner, J., dissenting).
Many individuals undoubtedly have sincere religious objections to the ACA's contraceptive-coverage requirement. But neither RFRA nor the First Amendment's free-exercise clause should be interpreted to permit owners of for-profit corporations to avoid compliance with a generally applicable law that is narrowly drawn to protect the health of women and children.
Board member Michael Stein recused from this editorial. I am a member of the Editorial Board of the New Jersey Law Journal. - GWC