Tuesday, July 1, 2014

The Contraception Mandate Challenge - Burwell v. Hobby Lobby: Statutory v. Constitutional

     The Supreme Court yesterday handed down a 5-4 ruling on ideological lines in their decision in Burwell v. Hobby Lobby (formerly Sebelius v. Hobby Lobby) that closely held for-profit companies can be exempt from the Affordable Care Act's (ACA) requirement to provide employees with basic Food and Drug Administration (FDA) approved contraception.  Contrary to popular belief, the case was not challenged on constitutional grounds, but statutory grounds.  Taking away the merits and examining the case on a purely statutory platform, the Court got the decision correct.  Here's why.

     Hobby Lobby and others filing suit against the government who were included in Monday's blockbuster decision were not suing under the First Amendment's free exercise clause.  Rather, they were suing under a law passed in the early 1990s called the Religious Freedom Restoration Act or RFRA.  RFRA was passed by Congress as a response to the Supreme Court's decision in a case called Employment Division v. Smith in which the Court ruled that a man who was fired for smoking peyote, which he claimed was for religious reasons, could not collect state unemployment because he was fired for violated the Controlled Substances Act and the Court disagreed that his religious views allowed him to break this law.  Typically, when examining cases of religious infringement or intrusion by the government, the Court applies the compelling state interest test, which means that; 1) the burden of proof lies with the government to that it can infringe on someone's religion (or other rights) if it has a compelling interest.  The Court ruled in Smith that, "under the First Amendment, 'neutral, generally applicable laws may be applied to religious practices even when not supported by a compelling governmental interest,'" which Justice Alito cited in his majority opinion in Hobby Lobby.  Congress then took the First Amendment one step further by enacting RFRA to, as Justice Alito stated, "ensure broad protection for religious liberty, RFRA provides that 'Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.'"

     On this basis, the Court's majority ruled that the ACA's contraception mandate substantially burdened Hobby Lobby and other petitioners and the government could not provide a compelling interest for infringing on the owners' rights.  Additionally, concerning corporate personhood, it is important to point out that contrary to what many may believe, corporations are people under current US law.  As codified in the Dictionary Act, "the words 'person' and 'whoever' include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals."  When examining the Hobby Lobby case under this strict lens, it should have come as no surprise that Hobby Lobby won.  However, focusing on purely constitutional precedent and historical context, Hobby Lobby should have lost.  Here's why:  

     RFRA is an unnecessary statute for two reasons.  First, it provides legal cover for a legal test that fairly applies the First Amendment's free exercise clause and has worked.  Second, as demonstrated by the Court in their decision of Hobby Lobby, "RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga [the petitioners in the other case heard at oral argument with Hobby Lobby] or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment," dissented Justice Ginsburg in Hobby Lobby.

     Furthermore, on the issue that RFRA establishes a dangerous precedent of favoring anyone who claims a religious objection regardless of third parties, Justice Ginsburg asserted that Congress explicitly sought to restore the compelling state interest test, "and to guarantee its application in all cases where free exercise of religion is substantially burdened."  Congress embedded RFRA into legal practice making it the baseline for all such challenges.  The compelling state interest test is not just used in religious infringement cases, but other instances in which plaintiffs assert the government infringes on a fundamental right.  RFRA specifically carved out religion and established a higher standard for it in legal challenges virtually shifting the burden of proof from plaintiffs to the government.  An amendment to RFRA, the Religious Land Use and Institutionalized Persons Act (RLUIPA), defines exercise of religion as , "any exercise of religion, whether or not compelled by, or central to, a system of religious belief," which departs from the original drafting of RFRA and the Constitution's First Amendment's free exercise clause jurisprudence.     

     The majority contends that Health and Human Services (HHS), the government agency responsible for implementing the ACA, cannot demonstrate a compelling interest for the contraceptive mandate, though the millions of women nationwide who depend on the birth control for basic health reasons would disagree.  Justice Ginsburg asserted first that the compelling interest of the government is to provide affordable health care for women that, "helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening... And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain," and secondly, "the Government has shown that there is no less restrictive, equally effective means," that would satisfy religious objections and meet the health care standards.  Moreover, Hobby Lobby contends that they only object to four of the 20 contraception methods the ACA requires employers to supply because the owners of Hobby Lobby believe they are abortion inducing drugs.  Justice Ginsburg addressed this by saying, "That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests," of the government.     

     Justice Alito, writing for the majority stated that the government could not satisfy a compelling interest because the government has offered exemptions to non-profit religious institutions that object on religious grounds.  One thing Justice Alito failed to reconcile is the fact that these non-profits do not pay taxes.  This is the major difference between exempt groups and for-profit companies - non-profits exempt from the ACA's contraception mandate are also exempt from paying taxes.  According to United Healthcare, "churches, other houses of worship, their integrated auxiliaries and conventions or association of churches, as well as the exclusively religious activities of any religious order," qualify for the contraception mandate exemption.  Justice Alito stated in a footnote in his opinion that the government's, "argument is not easy to square with the position taken by HHS in providing exemptions from the contraceptive mandate for religious employers, such as churches, that have the very same religious objections as," Hobby Lobby.  Justice Alito then provided a bit of a contradiction stating that companies cannot make a plea for an exemption against paying taxes for religious reasons because chaos would ensue.  The courts do not entertain taxpayer suits meaning a taxpayer cannot sue the government objecting to a tax or simply as a taxpayer.  Churches do not pay taxes, which is why they fall into a separate category than public sector groups.         

     As Lyle Denniston from SCOTUSblog rightly foretells, a case involving a group of nuns in Colorado called the Little Sisters of the Poor object to filling out paper work that will allow secular employees of their group to get contraception coverage on the basis that even filling out the paperwork is against their religion because they would be contributing to abortion inducing birth control, which is part of the process with the ACA contraception mandate exemption (my report on that case here.)  This situation may arise with Hobby Lobby as apparent in the Court's decision yesterday, because they now qualify for a religious exemption under the ACA and thus would have to fill this paperwork out, which would allow their employees to still remain covered through an ancillary mechanism.  Even more startling, is the Court firmly stated that their ruling today only applies to contraception and not as the dissent asserted, a slippery slope where corporations can pick and choose what laws to follow based on religious exemption.  The majority today stated:
This decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer’s religious beliefs. Nor does it provide a shield for employers who might cloak illegal discrimination as a religious practice.
     The majority asserted the rights of the collective (corporations) over the rights of the individual, contrary to small government, civil libertarian, conservative values that corporations are people because "extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees," stated Justice Alito.  It would appear that the Court got this right from a statutory standpoint, but RFRA is constitutionally unnecessary and projects the rights of a collective group e.g. a corporation, over the views of individuals.  However, RFRA was passed by Congress as a legislative remedy to the Court's decision in Smith, which is their prerogative, though it is constitutionally unnecessary in my opinion.  While employees are subject to the health coverage their employer offers and cannot pick and choose what their employer offers them, the ACA states only basic coverage approved by the FDA must be provided to them.  Justice Alito asserted that as far as Congress intended, and the government is concerned, the free exercise clause of the First Amendment is held to a higher standard under the law than similar legal tests and RFRA takes precedence over individuals and third parties:
HHS argues that the connection between what the objecting parties must do and the end that they find to be morally wrong is too attenuated because it is the employee who will choose the coverage and contraceptive method she uses. But RFRA’s question is whether the mandate imposes a substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs...The Court assumes that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA.

This post has been updated to correct inaccuracies concerning legal tests applied

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