On June 30, the U.S. Supreme Court ruled that closely-held for-profit corporations cannot be made to pay for contraception that violates their religious beliefs. The State of Alaska agrees.
Two family-owned companies, Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp., independently sued the Federal government, saying the Affordable Care Act’s (ACA) mandate that employer group health plans include “preventive care” without “any cost sharing requirements” violated the Religious Freedom Restoration Act (RFRA) of 1993. The Supreme Court consolidated their cases in Burwell v Hobby Lobby.
In a 5-4 decision written by Justice Samuel Alito, the Court said that, for these corporations, the contraceptive mandate violated the RFRA because the Department of Health and Human Services (HHS) failed to prove the mandate was “the least restrictive means of furthering [a] compelling governmental interest.”
In order to rectify the apparent divide between religious liberty and the right to women’s health care, the Court suggested the government pay for contraception when employers like Hobby Lobby have a religious objection. “If, as HHS tells us, providing all women with cost-free access to all FDA-approved methods of contraception is a Government interest of the highest order, it is hard to understand HHS’s argument that it cannot be required under RFRA to pay anything in order to achieve this important goal,” Alito wrote.
Hobby Lobby and Conestoga specifically balked at paying for four types of contraceptives, two of which are “morning-after” pills, while the other two are intrauterine devices (IUDs). The Court noted that the Mennonite owners of Conestoga and the Christian (denomination not specified) owners of Hobby Lobby held sincere beliefs that these four contraceptives were tantamount to abortion, since they allowed the fertilization of an egg but prevented implantation in the uterine wall. The companies had no objection to the 16 other types of contraception their plans were required to provide.
In a footnote, the majority recognized that while the companies believed these contraceptive methods to be abortifacients, the government defined pregnancy as beginning with implantation.
Several medical and women’s health group submitted amicus briefs to the Court contradicting the companies. Morning-after pills inhibit ovulation, while IUDs emit ions toxic to sperm. None of the devices prevent implantation or affect an already-fertilized egg, the groups said.
HHS argued that, regardless of the science, Hobby Lobby and Conestoga would not be facilitating abortions by providing the contraceptives in their health plans; the choice would be that of the employee. In the principal dissent, Justice Ruth Bader Ginsburg supported this concept, citing Grote v. Sebelius that “[n]o individual decision by an employee and her physician—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employer’s] decision or action.”
The majority disagreed, saying,
This argument dodges the question that RFRA presents (whether the HHS mandate imposes a substantial burden on the ability of the objecting parties to conduct business in accordance with their religious beliefs) and instead addresses a very different question that the federal courts have no business addressing (whether the religious belief asserted in a RFRA case is reasonable). The Hahns [owners of Conestoga] and Greens [owners of Hobby Lobby] believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage. This belief implicates a difficult and important question of religion and moral philosophy, namely, the circumstances under which it is wrong for a person to perform an act that is innocent in itself but that has the effect of enabling or facilitating the commission of an immoral act by another.
Critics of Hobby Lobby noted that its belief that providing certain contraceptive coverage is immoral is inconsistent with its investments. The employee 401(k) plan, to which Hobby Lobby contributes, includes mutual funds with holdings in pharmaceutical companies that manufacture both morning-after pills and IUDs. Hobby Lobby has options to screen out mutual funds to which they object, but they have not exercised them.
“What the Court must decide is not ‘the plausibility of a religious claim,'” Ginsburg argued, “but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States.” She continued, “A ‘least restrictive means’ cannot require employees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets.”
Corporate personhood, a political lightning rod, was a key component of the majority’s decision. Some lower courts had held that for-profit corporations’ sole purpose was to make money. The practice of religion would therefore be restricted to human beings.
Alito referred to corporate personhood under RFRA as a “familiar legal fiction,” but turned to the Dictionary Act to clarify that, unless otherwise specified, Congress defines “person” as “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.”
Alito wrote that “the purpose of extending rights to corporations is to protect the rights of people associated with the corporation, including shareholders, officers, and employees. Protecting the free-exercise rights of closely held corporations thus protects the religious liberty of the humans who own and control them.” HHS, he said, had acknowledged non-profits to be persons under RFRA. “This concession effectively dispatches any argument that the term ‘person’ as used in RFRA does not reach the closely held corporations involved in these cases. No known understanding of the term ‘person’ includes some but not all corporations.”
Ginsburg questioned corporations’ rights in light of their limited liability. “By incorporating a business…an individual separates herself from the entity and escapes personal responsibility for the entity’s obligations,” she wrote. “One might ask why the separation should hold only when it serves the interest of those who control the corporation.”
She continued the argument by seeming to question whether the conservative majority’s opinion was in keeping with free market principles. Citing United States v Lee, a case that upheld the government’s ability to collect Social Security taxes from Amish employers, Ginsburg wrote,
“When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage involved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga.
A religious exemption “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors,” said Ginsburg, as provided by Tony and Susan Alamo Foundation v. Secretary of Labor.
The State of Alaska, joining 19 other states with conservative governors, advocated strongly for the concept of corporate personhood. Attorney General Michael Geraghty signed on to two briefs, first for Conestoga Wood, then for Hobby Lobby, that supported the legal definition of a corporation as a person and defended corporate First Amendment rights. The states argued that restricting these rights would infringe on corporate law, which is primarily left to the states. As to the idea of competitive advantage, the states pointed out that non-profits and religious institutions were not subject to the contraception mandate.
The state’s involvement is not unusual. The Sean Parnell administration has repeatedly either filed amicus briefs or joined litigants in controversial suits. The State of Alaska supported a challenge to portions of the Voting Rights Act that were overturned by the Court and another to the Environmental Protection Agency’s (EPA) plan to limit pollution in the Chesapeake Bay watershed, which was upheld.
During Dan Sullivan’s tenure as Alaska attorney general, the state challenged the ACA and joined an amicus brief challenging the EPA’s authority to regulate greenhouse gases under the Clean Air Act. The Court will allow the EPA to implement its plan to regulate carbon dioxide emissions from coal fired power plants.
The state also signed an amicus brief challenging Chicago’s handgun ban, an act Sullivan said in an ad protected the Second Amendment. Sullivan, a Republican, is running for the U.S. Senate seat currently held by MarK Begich (D-Alaska). Parnell, who is running for reelection as governor, also took credit on his campaign page for protecting the Second Amendment with this court brief.
Parnell praised the Court’s Hobby Lobby ruling on his Facebook page, saying, “I am encouraged by Monday’s Supreme Court ruling dealing with First Amendment rights and religious freedoms. Alaskans can be sure that as Governor, I will continue to fight to uphold their freedoms and constitutional rights.”
By contrast, his Democratic gubernatorial opponent, Byron Mallott, issued a press release saying, “Living, breathing people should have more rights than the concept of a corporation,” and advocated for state legislation guaranteeing that insurers cover contraception. “It is unclear how many corporations operating in Alaska will seek to limit the health coverage for their employees after [Hobby Lobby],” the release concluded.
Ginsburg shared Mallott’s uncertainty:
Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?
Despite the majority’s assertion that its ruling was narrow, Ginsburg noted that “closely-held” corporations were not all small businesses. “For example,” she wrote, “the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in revenues and employs some 140,000 persons.”
According to a collaborative paper from the University of Michigan, Michigan State University, and Columbia University, closely-held corporations employ over half of the American labor force, meaning the Court’s ruling impacts the majority of workers.
Entities supporting the Court’s decision other than the state included the Family Research Council (FRC), which submitted an amicus brief of its own. The Alaska affiliate of FRC is the conservative Alaska Family Council.
None of Alaska’s congressional delegation chose to sign on to the various amicus briefs, pro or con. However, prior to the ruling, Begich issued a press release that said, “Decisions about reproductive health and contraception should be made in private between a woman, her doctor, her family and her faith – It is a gross invasion of privacy to allow employers or the government to make these decisions.” The Alaska Democrats Facebook page featured a picture of Begich and the quote, “Bosses should not be able to prevent access to family planning and birth control for Alaska women,” following the ruling.
Begich’s Republican opponents all support the Court’s decision. In a press release, Joe Miller said,
I am very pleased with the Supreme Court’s decision. While it is narrow in scope, the fact that business owners’ free exercise rights have been recognized is a step in the right direction. The Obama Administration’s chilling assault on the free exercise guaranteed in the First Amendment is outrageous, and all people of good faith, regardless of ideology, should see this as a triumph for Constitutional liberty.
Congressman Don Young (R-Alaska), also running for reelection, praised the Court’s ruling. Sen. Lisa Murkowski (R-Alaska) has not offered comment.