Wednesday, November 27, 2013

Supreme Court to Hear Hobby Lobby Obamacare Abortion Mandate Case

Sorry, dear readers, for being out of commission for so long.  I've started up a new class I'm teaching and have found myself navigating the healthcare system myself.  Enough excuses, back to the action.

One of the aspects of the Affordable Care Act, popularly known as Obamacare, that erodes its popularity is that it seeks to do far more to transform America than to just provide universal health insurance coverage.  Most people would like to see sick people be able to get good health care and for people to have access to health insurance if they want it.  However, Obamacare seeks to do far more to advance the agenda of the left.  One example is the requirement that all health insurance cover contraceptives, including those that cause abortions.

Under Obamacare, the Secretary of Health and Human Services (HHS) has the power to define what benefits a health insurance policy must have.  If HHS determines that a policy does not have everything it is supposed to have, HHS has the power to assess huge penalties on both the employer and the insurance company.

Using that power, HHS requires that all health insurance policies cover contraceptives.  The Catholic Church condemns the use of any contraceptives, so a Catholic employer trying to follow church teachings could object to being forced to pay for contraceptives.  Even more troubling, the mandate requires coverage of abortificants, drugs that induce an abortion after conception.  Many Protestants and others who would have no problem with other kinds of contraceptives believe these kinds of drugs are wrong.  They don't want to be involved in paying for them, whether directly or indirectly.

Can businesspeople be forced to buy a product they find morally objectionable?  Or does the business simply have to leave their moral values behind when they go into business?  Or is the business merely a bystander to the decisions made between its employees and their doctors.

We're about to find out.

Yesterday, the Supreme Court agreed to hear two cases challenging Obamacare's requirement that companies provide health insurance covering contraceptives, including those that induce abortions.  The key issue is whether a private, for profit, corporation is a "person" within the meaning of federal law and under the Constitution and therefore has freedom of religion.  In other words, does a corporation have freedom of religion?  If so, does the contraceptive mandate violate that freedom of religion.  As my old bosses used to say, that's a toughie.

In one case, Sebelius v. Hobby Lobby Stores, Inc., the lower court held that Hobby Lobby does have constitutional and statutory religious rights and that the abortion mandate likely violates those rights.  The court returned the case to trial court for further proceedings.

In a second case, Conestoga Wood Products, Inc. v. Sebelius, the lower court held that a for-profit, secular corporation does not have any freedom of religion whatsoever and denied the company's claim. Although the court seems to believe that a church organized as a corporation would have freedom of religion because it is not for profit, or even a for profit religious publishing company would have freedom of religion and freedom of the press, a for profit business in the eyes of the court has no such rights.  Therefore, the company must comply with the mandate to provide abortion inducing drugs.

A third case, Autocam Corp. v. Sebelius, may also reach the Supreme Court.  In that case Catholic business owners object to the contraceptive mandate as well as the requirement that policies pay for sterilization procedures.  They lost in the lower court and recently appealed to the Supreme Court.  Don't be surprised if the Supreme Court takes up this case as well.

These are complicated cases, but here's the gist of the legal issues to be decided:

  • Is a for profit corporation a person entitled to protection of freedom of religion under federal law and the Constitution?  If not, the case is over and the companies lose.
  • If so, does the contraception mandate violate either federal law or the Constitution?  If yes, then the government can't enforce the mandate.  Such a ruling would open the door to other challenges as well.

Corporations have some constitutional rights that real people have, but not all of them.  For example, corporations can't vote.  They also have no right against self-incrimination under the 5th amendment.  However, corporations do have limited free speech rights.  For example, companies have a right to advertise their products but face limitations to prevent fraud or health dangers.  In addition, corporations have some rights to participate in the political process, most notably by spending money in political campaigns to support one side or the other.

It seems obvious that certain corporations have to have first amendment rights.  I don't think anyone would argue that The New York Times, Inc. lacks the protections of the freedom of the press.  In addition, it seems equally obvious that a local Baptist Church organized as a corporation would have freedom of religion.  If they don't, then the corporate form would become completely unworkable for these kinds of organizations.

What gets tougher is where the company's purpose is to sell a product that has nothing to do with religion but the owners want to follow their religious beliefs in running the company.  The problem for a court is that if we recognize that right, we have to measure whether the belief is genuine and the law violates the belief.  For example, could someone claim that their religion forbids the paying of taxes? The line-drawing exercises would become tedious and dangerous, requiring courts to determine what religious beliefs and are entitled to protection and which ones aren't. That's the reason the Court might hesitate to recognize a general freedom of religion for corporations.

Given the ethical lapses American business has had over the last decade or so, I applaud companies that  stick to their moral beliefs.  One of the things I always tell my students is that ethics are expensive.  It's easy to be moral when it's free, it gets a lot tougher when it costs money.  For the Court to send the message that business is a religion and morality-free zone could cause enormous amounts of harm.  "It's just business" has been an excuse for too long. We should laud companies that state their values and stick to them.

What if the corporations lose?  These companies might so strongly oppose the contraceptive mandate, especially the part that raises the abortion issue, that they would just drop coverage for their employees.  Given the financial incentives under the Affordable Care Act (aka Obamacare) to drop coverage, these moral objections would be just one more factor to let employees get their own coverage elsewhere.

We'll keep you posted as the case develops.  Observers say we should expect arguments in March 2014 with a decision later in 2014.