“All Corporations Go To Heaven”: Can CEO’s Impose Their Religious Convictions On The People Who Work For Them?
Remember the big dustup last summer over the contraception mandate in President Obama’s health reform initiative? It required companies with more than 50 employees to provide insurance, including for contraception, as part of their employees’ health care plans. The constitutional question was whether employers with religious objections to providing coverage for birth control could be forced to do so under the new law. The Obama administration tweaked the rules a few times to try to accommodate religious employers, first exempting some religious institutions—churches and ministries were always exempt—and then allowing companies that self-insure to use a separate insurance plan to pay and provide for the contraception. Still, religious employers objected, and lawsuits were filed, all 60 of them.
A year later, the courts have begun to weigh in, and the answer has slowly begun to emerge: maybe yes, maybe no. It all depends on whether corporations—which already enjoy significant free-speech rights—can also invoke religious freedom rights enshrined in the First Amendment.
Last Friday, the 3rd U.S. Circuit Court of Appeals upheld the contraception mandate, rejecting a challenge from a Pennsylvania-based cabinetmaker who claimed that as a Mennonite he should not be compelled to provide contraceptive coverage to his 950 employees because the mandate violates the company’s rights under the free exercise clause of the First Amendment and the Religious Freedom Restoration Act. The owner considers some of the contraception methods at issue—specifically, the morning-after and week-after pills—abortifacients.
The appeals court looked carefully to the precedent created by Citizens United—the 2010 case affording corporations free-speech rights when it came to election-related speech—to determine whether corporations also enjoy constitutionally protected religious freedom. Writing for the two judges in the majority, Judge Robert Cowen found that although there was “a long history of protecting corporations’ rights to free speech,” there was no similar history of protection for the free exercise of religion. “We simply cannot understand how a for-profit, secular corporation—apart from its owners—can exercise religion,” he concluded. “A holding to the contrary … would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”
Cowen also flagged the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs. “We are not aware of any case preceding the commencement of litigation about the Mandate, in which a for-profit, secular corporation was itself found to have free exercise rights.” Finally he took pains to distinguish the corporation, Conestoga, from its legal owners. “Since Conestoga is distinct from the Hahns, the Mandate does not actually require the Hahns to do anything. … It is Conestoga that must provide the funds to comply with the Mandate—not the Hahns.”
Judge Kent Jordan, dissenting at length in the case, said that for-profit, secular corporations can surely avail themselves of the protections of the religion clauses. “To recognize that religious convictions are a matter of individual experience cannot and does not refute the collective character of much religious belief and observance … Religious opinions and faith are in this respect akin to political opinions and passions, which are held and exercised both individually and collectively.”
The 3rd Circuit decision creates a significant split between the appeals courts, because a few short weeks earlier, the Colorado-based 10th U.S. Circuit Court of Appeals ruled in favor of Hobby Lobby Stores Inc., finding by a 5–3 margin that corporations can be persons entitled to assert religious rights. Hobby Lobby is a chain of crafts supply stores located in 41 states. The 10th Circuit upheld an injunction blocking the contraception requirement because it offended the company owners’ religious beliefs. The majority in the 3rd Circuit wrote that it “respectfully disagrees” with the 10th Circuit. A split of this nature makes Supreme Court review almost inevitable.
The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone’s “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans. The employers and the judges who have enjoined the birth-control provision claim that they are being forced to choose between violating protected religious beliefs and facing crippling fines and that free or inexpensive birth control is available at community health centers and public clinics.
Basically, the constitutional question will come down to whether a for-profit, secular corporation can hold religious beliefs and convictions, or whether—as David Gans explains here —“the Court’s cases recognize a basic, common-sense difference between living, breathing, individuals—who think, possess a conscience, and a claim to human dignity—and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.” Will Baude takes the opposite view, explaining that the 3rd Circuit’s reasoning—that “ ‘corporations have no consciences, no beliefs, no feelings, no thoughts, no desires’ … would all prove too much, because they are technically true of any organizational association, including … a church!” Baude likens the claim that corporations can never have religious freedom rights to the claim that corporations—including the New York Times—can never have free-speech rights.
Part of the problem, at least in the case of Hobby Lobby and Conestoga, is that neither corporation was designed to do business as religious entities. It has been clear since the nation’s founding that corporations enjoy rights in connection to the purposes for which they were created—which is why the administration already exempts religious employers whose purpose is to inculcate religious values and chiefly employ and serve people who share their religious tenets. This is about companies that don’t meet those criteria. As the dissenters at the 10th Circuit observed, the fact that some “spiritual corporations” have some religious purposes doesn’t make every corporation a religious entity. And as professor Elizabeth Sepper of Washington University puts it in a new law-review article on the subject: “Corporations, as conglomerate entities, exist indefinitely and independently of their shareholders. They carry out acts and affect individual lives, and have an identity that is larger than their constituent parts. Walmart is Walmart, even when Sam Walton resigns.”
The rest of the problem is self-evident. Where does it stop? Why does your boss’ religious freedom allow her to curtail your own? The dangers in allowing employers to exercise a religious veto over employee health care are obvious. Can an employer deny you access to psychiatric care if he opposes it on religious grounds? To AIDS medications? To gelatin-covered pills? Constitutional protections of a single employer’s individual rights of conscience and belief become a bludgeon by which he can dictate the most intimate health decisions of his workers, whose own religious rights and constitutional freedoms become immaterial.
Religious liberty arguments have been historically advanced in defense of the rights of slaveholders, segregationists, creationism, anti-gay bigotry, and gender inequality. The religious convictions in each instance were indisputably deeply felt and fundamental. That didn’t mean they trumped everything else. As we have advanced as a society—beyond slavery, segregation, homophobia, and sexism—we have worked to accommodate religious belief while pushing for fundamental fairness and equality. It’s never been a perfect accommodation. It can’t be. But religious liberty interests are rarely the only—or even the most important—interests at play. And suggestions that unwilling employers are forcing birth control on unwilling employees misstates the truth: Employees who choose to use contraception (as 99 percent of us will do at some point) shouldn’t do so at the sufferance of their bosses.
In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because “[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.” And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” None of this guarantees how the Supreme Court will decide the contraception mandate. If recent history is any predictor, it may be as fractious as the Affordable Care Act decisions themselves.
The guarantee of religious freedom enshrined in the Constitution was intended to protect fragile minorities from crushing religious burdens imposed by the wealthy and powerful. The notion that secular corporations—created by government to maximize shareholder profits and limit liability—might lay claim to their owners’ human rights of religious conscience is doubly astounding when you consider that their principal reason for being is to dissociate themselves from the frailties of human conscience in the first place.
By: Dahilia Lithwick, Slate, August 1, 2013
“Let The Excitement Begin”: Virginia GOP Continues Its Sprint From The Mainstream
E.W. Jackson, the Republicans’ candidate for lieutenant governor in Virginia this year, is on record saying quite a few nutty things. Late last week, however, Jackson effectively said his bizarre rhetorical excesses shouldn’t be held against him.
The comments, he said, “were spoken in my role as a minister, not as a candidate.”
I don’t mean to sound picky, but when someone seeks elected office, the things he or she did before becoming a candidate still count.
Meanwhile, Bob FitzSimmonds, a former aide to gubernatorial nominee Ken Cuccinelli and a top official in the Republican Party of Virginia, said last week, “I’m not a big fan of contraception, frankly. I think there are some issues, we’re giving morning-after pills to 12-year-olds, and pretty soon I guess we’ll hand them out to babies, I don’t know.”
Why would anyone give emergency contraception to a baby? I don’t know, but apparently this GOP official and close Cuccinelli ally is concerned about it. (FitzSimmonds also made headlines last fall for talking about his belief that President Obama is going “to hell.”)
So, let’s take stock. Virginia’s Republican gubernatorial candidate is a fierce culture warrior; Virginia’s Republican candidate for lieutenant governor is an unusually strange right-wing activist; Virginia’s Republican candidate for state attorney general once sponsored a bill that would have required women to report their miscarriages to the state; and Virginia’s Republican Party is led in part by someone who still opposes contraception.
Oh, and Virginia’s current Republican governor is embroiled in a scandal.
All of this is important when considering which party will have greater success reaching out to independents, moderates, and swing voters with no real party allegiance, but there’s also the matter of waking up the Democratic base. It’s an off-year cycle, and Democratic Party leaders have long wondered how they’ll generate sufficient levels of excitement among progressive voters to show up.
It appears GOP activists in the commonwealth are taking care of that problem.
By: Steve Benen, The Madow Blog, May 28, 2013
“Peacemaking On Contraception”: An Olive Branch To The Catholic Church On Contraception Coverage
America’s Big Religious War ended on Friday. Or at least it ought to.
A little more than a year ago, the Obama administration set off a bitter and unnecessary clash with the Roman Catholic Church over rules mandating broad contraception coverage under the Affordable Care Act. The Department of Health and Human Services’ announcement of new regulations is a clear statement that President Obama never wanted this fight.
The decision, the administration’s second attempt at compromise, ought to be taken by the nation’s Catholic bishops as the victory it is. Many of the country’s most prominent prelates are inclined to do just that — even if the most conservative bishops seem to want to keep the battle raging.
But more importantly, the final HHS rules are the product of a genuine and heartfelt struggle over the meaning of religious liberty in a pluralistic society. The contraception dispute was difficult because legitimate claims and interests were in conflict.
The vast majority of Americans believe that health insurance should cover contraception. At the same time, the Catholic Church has a theological objection to contraception, even if most Catholics (including regular churchgoers) disagree with its position. The church insisted that its vast array of charitable, educational and medical institutions should be exempt from the contraception requirement.
The church made a mistake in arguing its case on the grounds of “religious liberty.” By inflating their legitimate desire for accommodation into a liberty claim, the bishops implied that the freedom not to pay for birth control rose to the same level as, say, the freedom to worship or to preach the faith. This led to wild rhetorical excesses, including a comparison of Obama to Hitler and Stalin by one bishop and an analogy between the president’s approach and the Soviet constitution by another.
But the church had good reason to object to the narrowness of the original HHS definition of what constituted a religious organization entitled to exemptions from the contraception requirement. If an organization did not have “the inculcation of religious values” as its purpose and did not employ or serve primarily those who shared the faith, it got no exclusion at all.
The problem is that the vast charitable work done by religious organizations to help millions, regardless of their faith, is manifestly inspired by religion. The church could not abide the implicit reduction of its role merely to private expressions of faith. Don’t most Americans devoutly wish that religious people will be moved by their beliefs to works of charity and justice?
The HHS rules announced Friday scrapped this troubling definition in favor of long-established language in the Internal Revenue Code. In an interview, HHS Secretary Kathleen Sebelius showed a becoming humility, and it would be nice if this rubbed off on her critics. However defensible the original rules might have been, she said, “they really caused more anxiety and conflict than was appropriate.”
“What we’ve learned,” she said, “is that there are issues to balance in this area. There were issues of religious freedom on two sides of the ledger” — the freedom of the religious institutions and the freedom of their employees who might not share their objections to contraception.
This is where the other accommodation kicked in: Many Catholic institutions self-insure. While the administration rightly wants broad contraception coverage to include hospital workers, teachers and others at religious institutions, it also seeks to keep religious organizations from having “to contract, arrange, pay or refer” for coverage “to which they object on religious grounds.”
Under the new rules, employees who want it will be able to get stand-alone coverage from a third party. Some of the costs will be covered by small offsets in the fees insurers will have to pay to participate in the new exchanges where their policies will be on sale. It’s an elegant fix.
There are two reasons for hope here, particularly for Catholic progressives. First, the administration recognized the problem it had created and resolved it. Vice President Biden played a key role here, keeping lines of communication with the church open.
Second, many bishops have come to realize that the appearance of a state of war with Obama not only troubled many of the faithful — Obama, after all, narrowly carried the Catholic vote — but also threatened to cast a church with strong commitments to immigrants, social justice and nonviolence as a partisan, even right-wing organization.
This war has been bad for everyone involved. Obama has moved to end it. Here’s a prayer that the bishops will also be instruments of peace.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, February 3, 2013
“Safety Was Never The Intention”: Michigan Governor Signs Extreme Anti-Abortion Bill Into Law
Michigan Gov. Rick Snyder (R) has approved a controversial package of abortion restrictions that will limit abortion access for women who live in rural areas, require doctors to prove that mentally competent women haven’t been “coerced” into their decision to have the procedure, and enact unnecessary, complicated rules for abortion clinics and providers. The governor signed HB 5711 into law on Friday despite widespread protests against the omnibus anti-abortion measure.
Snyder claims that HB 5711 “respects a woman’s right to choose while helping protect her health and safety.” But women’s health advocates warn the law will seriously threaten women’s access to the health services they need by imposing harsh regulations on abortion clinics and providers:
Critics of the Michigan law fear its insistence on new, standalone facilities will hurt women in rural and low-income areas as it could force some clinics to close. They say questioning women on whether an abortion is voluntary subjects them to a type of interrogation.
The Center for Reproductive Rights, an abortion rights group that opposed the measure, said it could force many existing abortion providers in the state to either tear down their offices and rebuild from the ground up — or shutter their practices. […]
“Safety was never the intention of this law. The only thing this law accomplishes is to make a difficult decision even more difficult,” said Rana Elmir, the communications director for the Michigan ACLU.
Even some state lawmakers who supported HB 5711 acknowledge the law isn’t actually intended to protect women. “This is about protecting fetuses,” one Republican legislator explained.
Michigan legislators were quick to capitalize on this year’s lame duck session to push through controversial abortion restrictions, potentially because five anti-choice state lawmakers lost their seats in November’s election. The majority of Michigan voters support legal access to abortion services.
By: Tara Culp-Ressler, Think Progress, December 31, 2012
“Save The Babies Or Save The Budget”: Dear Conservatives, Your Opposition To Family Planning Comes With A Huge Price Tag
Conservatives have long painted themselves as the guardians of fiscal sanity. But they have also fashioned themselves as the guardians of the innocent babies being preyed upon at Planned Parenthood. Even though abortions make up just 3 percent of the services Planned Parenthood provides—and many clinics don’t provide them at all because of restrictions placed on the funding they receive—conservatives have long held a legislative grudge against the organization and have even broadened their contempt to other family planning clinics.
That deep-held distaste for women’s health providers led Texas lawmakers last year to slash $73 million from all of its family planning services and shift the money to other areas of the budget. This blunt instrument hit all of the state’s women’s health providers, but was meant to target Planned Parenthood and deny it taxpayer dollars—even though the clinics that received state subsidies for care never performed abortions.
This may be in line with their staunch opposition to what they see as a baby-killer, but that ideology comes with quite the price tag. News has surfaced that for the two-year period between 2014 and 2015, poor women are expected to deliver nearly 24,000 babies that they wouldn’t otherwise have had if they had access to state-subsidized birth control. Those extra births will cost taxpayers as much as $273 million, with between $103 million to $108 million of that hitting the state’s general revenue budget alone. Much of the cost comes from caring for those infants through Medicaid.
Lawmakers may not care about what this means for the lives of the low-income women who are now bearing and raising children whose births they would have otherwise prevented had they had access to contraception. But conservatives, the fiscally responsible party, are now thinking twice about the budgetary implications. The New York Times reported last week that “a bipartisan coalition is considering ways to restore some or all of those family planning dollars, as a cost-saving initiative if nothing else.” It’s not like the budget hit should come as a surprise, however. When the cuts were initially debated, an estimate was circulated that they would lead to an extra 284,000 births at a cost of $239 million. Yet the cuts passed, “a price that socially conservative legislators were willing to pay in their referendum on Planned Parenthood,” as the Times reports.
And unfortunately, the ideological battle against Planned Parenthood will not be brought to a complete cease-fire, even in the face of these stark numbers. Planned Parenthood will almost certainly be excluded from any reinstated family planning funding because of an existing ban against taxpayer money going to providers who are “affiliated” with clinics that perform abortions, even if they don’t do so themselves. While there are other women’s health providers in the state, RH Reality Check’s Andrea Grimes set out to find out whether the hundreds of listings on Texas’s website actually provide the services women need. She found that “many of them don’t provide any kind of contraceptive care, don’t take Medicaid Women’s Health Program clients, or are simply misleading duplicate listings.”
And the ones that do offer the right services likely won’t be able to meet the huge increase in demand. Grimes cites a study that found that Planned Parenthood accounted for half of the state’s women’s healthcare, serving nearly 52,000 clients. The remaining providers mostly serve ten or fewer patients. That’s just not going to cut it for all of the women who now need to find care.
Continuing to deny funding to Planned Parenthood will keep costing the state, even if other clinics see their funding reinstated. To the tune of an estimated $5.5 million to $6.6 million as a result of paying for the entire women’s health program on its own, rather than receiving the 90 percent federal matching funds, as well as paying for a higher number of births that will have to be covered by Medicaid funds.
Texas is a huge state, so its case sticks out like a sore thumb. But it’s not the only one to go after family planning services and Planned Parenthood. As the Guttmacher Institute reports, last year some states felt compelled by the federal push to ban federal funds from going to Planned Parenthood to look at whether providers in their states that use private funding for abortion should be barred from receiving state funding or, in some cases, federal Medicaid reimbursements. Currently, six states prohibit some providers from receiving family planning funds and in three the restrictions apply to those that provide abortion or are affiliated with agencies that do.
So conservative lawmakers across the country will now be faced with a choice: save the babies or save the budget. Because it’s clear that you can’t do both. Organizations that provide contraception—and, it must be said, abortions—not only do great service to the women who need to control their fertility and their lives. They do great service to taxpayers. By giving women access to contraception, publicly funded family planning organizations save us $3.74 for every dollar we spend in avoided Medicaid costs associated with unplanned births. Their services saved federal and state governments $5.1 billion in 2008.
As Texas has just found out, those aren’t imaginary numbers. They are very real. Whoever says that contraception and abortion aren’t economic issues should take a second look. They have a huge impact on women’s financial situations. But, perhaps higher on conservatives’ checklist, they have an enormous impact on the budget.
By: Bryce Covert, The Nation, December 10, 2012
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