Thoughts on Sebelius v. Hobby Lobby Stores, Inc., Pt. 2

**This is a modified version of an essay that I had published in the spring of this year. Essay material corresponds with PHI-130 Medical Ethics under Dr. Lance Stell. This post will detail my legal and medical reasoning for my predicted outcome in Sebelius v. Hobby Lobby Stores, Inc. While I realize that this post is longer, I feel that it is important to share some insight into how I view cases like these and how I approach them. My reasoning best matches that of the Brennan Center’s of NYU Law.

On March 23, 2010, Congress adopted the Patient Protection and Affordable Care Act (ACA), a broad legislative initiative to overhaul the nation’s health-care system and regulations. One feature of the act is that it requires a general provision that employer-sponsored group health care plans cover “preventive care and screenings,” including approved contraceptive methods, sterilization procedures, and patient education and counseling for women in relation to reproduction in accordance with recommendations from the Health Resources and Services Administration.

While some may contest that legislation like the ACA weaken individual liberties by disregarding business owners’ religious liberties, the ACA helps to promote individual liberties and does not infringe upon business owners. Contraceptive coverage should be mandatory for all health insurance policies, irrespective of business owner’s religious beliefs in accordance with the ACA. Businesses should accept the ACA mandate for contraceptive coverage because it does not infringe upon First Amendment Rights, does not violate the Religious Freedom Restoration Act of 1993, and promotes competent scientific practices. Because the ACA does not infringe upon constitutional rights and supports valid scientific practices, contraceptive coverage should be mandatory.

Since the nation’s founding, the Constitution has dutifully protected religious liberties as a personal right for citizens, yet businesses cannot take part in this constitutional tradition due to conflicts with the Free Exercise Clause within the First Amendment. Businesses lack reason, dignity, and conscience, distinctly separating them from fundamental human pursuits and the central pursuit of free exercise of religion.

In Citizens United, the Supreme Court held that government entities cannot suppress political speech for corporations in accordance with the Free Speech Clause, but in July of 2013, the US Court of Appeals for the Third Circuit determined that “for-profit, secular corporations cannot engage in religious exercise” in Conestoga Wood Specialties Corporation v. Sebelius.

As noted in Conestoga’s outcome reasoning, the purpose of the Free Exercise Clause is to secure religious liberty in individuals by prohibiting interventions from civil authorities. The court notes, “religious belief takes shape within the minds and hearts of individuals, and its protection is one of the more uniquely human rights provided.” The Tenth Circuit Court concluded in concurrence in 2013 regarding Hobby Lobby Stores, Inc. v. Sebelius that corporations simply do not exercise religion, for businesses are unable, apart from the actions of their owners and employees, to take religiously-motivated actions. Although business owners may hold personal religious convictions, Free Exercise protections do not extend to for-profit, secular corporations. “Artificial being(s), invisible, intangible, and existing only in contemplation of law” are distinctly different from United States citizens seeking to exercise human rights with a defined conscience (Dartmouth Coll., 17 U.S. 518).

Because the ACA does not require individuals who own businesses to personally provide health care coverage but rather only corporate entities, these businesses cannot be harmed by Free Exercise infringements or violate personal conscience.

Opponents of the ACA note that the steep fines and penalties associated with failure to comply with the provisions of the contraceptive mandate infringe upon provisions set forth by the Religious Freedom Restoration Act of 1993 (RFRA), but making contraception coverage mandatory is not in violation. RFRA is a federal law that seeks to prohibit laws that “substantially burden” a person’s free exercise of religion (RFRA, Sec. 3). The Government may not substantially burden this exercise unless the violation is in accordance with approved exceptions. These exceptions are broadly defined that the law “is in furtherance of a compelling governmental interest” and “is the least restrictive means of furthering that governmental interest.” Only beliefs rooted in religion are protected by the Free Exercise Clause; thus, even sincere secular beliefs would not be covered by the First Amendment in this context.

Upon passing the ACA, debates regarding religious-employers received the most coverage, for while the law allows for churches and houses of worship to bypass the legislation, it does not leave room for conscientious objections. In order to understand the applicability of RFRA to corporations, religion itself must be defined. In a dissenting opinion in the US 7th Circuit, Justice Sykes writes:

“All of this reinforces what one would otherwise intuit about religion: that it is inextricably intertwined with characteristics that are uniquely human: conscience, belief, faith, and devotion. Religious beliefs have to do with such fundamental questions as the nature of mankind, where we came from, our place in the world, what happens when we die, and our relationships with and obligations to other people. Only the human mind can entertain such questions (Korte v. Sebelius, Nos. 12-3841 & 13-1077).”

Although Justice Sykes dissented from the majority opinion, the reasoning poses unique implications. In this reasoning, corporations are unable to generate autonomous decisions in that religious faith cannot be incorporated as legal construct. This ideological backing is similar to Planned Parenthood v. Casey where it was asserted that, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.”

RFRA does not compel the individual owners to alter their own personal practices, but rather, it compels them to provide corporate health plans who in turn fund the insurance employees use to purchase contraception. As the American Civil Liberties Union notes in their amicus brief to the Supreme Court for Hobby Lobby Stores, Inc., v. Sebelius, the owners are only required to cover health insurance. Providing insurance plans does not place a “substantial burden” on the owners, and the decision to obtain contraception lies therein with the employee. RFRA does not protect individuals seeking to suppress the free-exercise powers of individuals who differ in religious or personal beliefs from the business owner.

Contestants of the ACA mandate claim that contraceptive coverage should not be supported as many forms of contraceptive are linked to abortive practices. In October 2013, Senator Ted Cruz of Texas told attendees of the 2013 Values Voter Summit that the ACA was “forcing… businesses like Hobby Lobby to provide ‘abortifacients’.” In 1976, Congress drafted and passed the Hyde Amendment in order to ensure that abortion is not covered through Medicaid health care services, a federal government program. Although the ACA does require employers to cover birth control and emergency contraception, businesses are not required to cover RU-486, the abortion-inducing medication that is often mistaken for emergency contraception. Many politicians contest that emergency contraception causes abortions by preventing implantation in the uterus, yet as Pam Belluck notes in The New York Times, “It turns out that the politically charged debate over morning-after pills and abortion, a divisive issue in this election year, is probably rooted in outdated or incorrect scientific guesses about how the pills work.”

Most drugs under the ACA delay ovulation, the release of eggs from ovaries that occurs before eggs are fertilized; thus, these drugs prevent the creation of fertilized eggs. In its brief on behalf of petitioners for Sebelius v. Hobby Lobby Stores, Inc., the Physicians of Reproductive Health et al. stated that, “Abortificient has a precise meaning in the medical and scientific community and it refers to the termination of a pregnancy. Contraceptives that prevent fertilization from occurring, or even prevent implantation, are simply not abortifacients (Sebelius v. Hobby Lobby Stores, Inc., No. 13-354).”

Although there was initial confusion regarding contraceptives, these products are now understood to prevent fertilization. Emergency contraception methods are not abortifacients, and abortifacients are not covered under the ACA.

Contraceptive coverage should be mandatory for all health insurance policies irrespective of business owners’ personal religious beliefs. The ACA does not infringe upon provisions set forth by the First Amendment or RFRA, as the businesses and corporations subject to the contraceptive mandate hold distinct behaviors and traits that distinguish them from acting as parties who can be placed under “substantial burdens” under law. Indeed, the ACA furthers adoption of evidenced-based medical practices to enhance the relationship between patients and physicians. Thus, it is within the interests of both business owners and their employees throughout the United States to support the contraceptive mandate within the ACA.

Expected outcome: This can really go either way. Expect a 5-4 ruling. Justice Kennedy will again be the swing vote.

This week is my Super Bowl.

Note: I think that media has largely missed the point of this case. “Obamacare” will continue to live, and women will still have access to contraception. This case primarily concerns provisions of corporate law assessing if corporations should have the same constitutional rights as individuals. I think that this HuffPo piece does a nice job of explaining these distinctions.

Let’s see if I’m right.

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