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The Supreme Court Will Rule on Obamacare's Contraception Requirement. Here's Why You Should Care.

By ARI EZRA WALDMAN

131002191139-tsr-moos-obamacare-sign-up-glitches-00000812-story-topLast week, the U.S. Supreme Court agreed to hear two cases challenging the Affordable Care Act. The last time that happened, the Court determined by a bare 5-4 majority that the so-called individual mandate, the requirement that everyone has to buy health insurance or pay a tax, was constitutional. Next year, the Court will consider whether corporations can refuse to provide insurance plans that include contraception if doing so would violate the religious beliefs of those corporations' owners.

This matters, not just to those of us in need of health care and not just to those of us who work for companies run by religious people. It matters to all LGBT Americans because the scope of this particular religious exemption could affect the scopes of other religious exemptions.

The cases -- Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius -- will determine the breadth of the religious exemption from Obamacare. Unfortunately, the pretext of religious freedom has gained much traction of late in justifying continued discrimination. And this Court's conservative majority has set itself up to strike a blow against equality.

AFTER THE JUMP, I will construct the argument I expect the Court's conservatives will use to expand the religious exemption. I will show how that argument is deeply flawed. And then I will show how dangerous it is for the LGBT community.

We've spoken before about the donut hole that is a religious exemption to an equality law. In brief, laws that mandate equal treatment may not apply to everyone. For example, a law that requires a state to recognize a marriage between two men should not force a Catholic Church to actually perform one of those marriages if it would conflict with that Church's essential dogma. But there are other kinds of exemptions: those so-called "conscience clauses" that would allow, say, a county clerk in a marriage equality state to deny two men a marriage license simply because she thinks her religion tells her to.

The latter is problematic for obvious reasons: it uses the pretext of religious freedom to condone discrimination. The former is also problematic for a more subtle reason: a civil marriage equality law doesn't even apply to religious solemnizations of marriage; so, a church would never need an exemption from a law that doesn't apply to it. The exemption is superfluous, yes, but as an unnecessary, extraneous provision that is unique to equality laws that apply to LGBT Americans, it suggests that LGBT equality is something so extraordinarily odd that it requires overkill compensation to traditionalists.

But back to the Affordable Care Act for a moment. The argument for broadening the Obamacare religious exemption to include any commercial company is so strange, yet strange appears to be becoming more normal under the Roberts Court.

I can summarize the exemption argument in one phrase: corporations are people, too.

Several years ago, the Court decided in Citizens United that corporations were "persons" for the purposes of free speech. That case opened the floodgates for unlimited corporate contributions to political campaigns. But if corporations are "persons" for one part of the First Amendment (speech), it seems like they should be "persons" for another part of the First Amendment (free exercise of religion). Therefore, the argument goes, corporations, as persons, enjoy the same protections against the erosion of their religious beliefs as you and I. Forcing that corporation to provide access to contraception would violate the religious beliefs of that "person" and offend federal law; therefore, the corporation should be exempted.

And so we see how a seemingly unrelated decision about free speech can affect health care.

But the argument is rubbish. Just because one clause of the First Amendment is interpreted one way does not mean that every other clause of the First Amendment has to be interpreted the same way. If it did, our federal law would look much different than it does today. Certain clauses only apply in certain situations, to certain actors, given certain contexts. To transport one doctrine to an entirely separate area of social and legal life is too simple and just wrong.

Plus, not all organizations are the same. Already, the Administration has exempted religious institutions, but it has rightly balked at giving for-profit commercial corporations the right to use the religious exemption provision because religious dogma has nothing to do with those corporations. In other words, the Catholic Church is different than a construction company: the former deals in piety and salvation; the latter deals in two-by-fours and split level condos. If religion is the product, then maybe the exemption could apply; where religious is irrelevant to the business, you can't claim to be "religious" just because it suits you and your moral goals independent of your corporate persona.

As I have already suggested, expanding the religious exemption to for-profit corporations that have nothing to do with religion would be dangerous for the religious exemption battle brewing in the LGBT equality context. If the Supreme Court allows an arts-and-crafts business to exempt itself from having to provide contraception to its workers because its owners don't believe in contraception, then the owners of a catering hall could use that precedent to argue that they should be allowed to deny service to gay couples because they don't like gay marriages, gay persons, or gay lifestyles. It's a dangerous precedent to set.


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Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

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Comments

  1. The Catholic Church deals in piety and salvation? News to me.

    Posted by: FakeName | Dec 6, 2013 12:14:09 PM


  2. Isn't the whole purpose of incorporating a company to legally separate yourself from the corporation? It seems that the religious views of Hobby Lobby's owners should be irrelevant since they're not the ones being affected by the Affordable Care Act.

    Posted by: Rakihi | Dec 6, 2013 1:21:43 PM


  3. To me the concept of a company having religious rights is laughable. But, if companies are persons and are allowed to declare their religion, what is to prevent them from becoming Christian Scientists and not providing insurance at all? Why does the company have to share the religious values of its owners, especially if there are good business reasons for the company to be of another faith. Or why not just go for the brass ring and declare you business to be a member of the Church of Jesus Christ-Christian. Then you get out of serving the gays, the catholics, and all sorts or icky non-white folks.

    Posted by: GeoffreyPS | Dec 6, 2013 1:40:52 PM


  4. Ari, this is tangential to your excellent post.

    I'd love to retire the phrase "gay lifestyle," inasmuch as lifestyles -- unlike sexual orientation -- are chosen. Vegetarianism, living in the suburbs, or living in a twenty-room mansion are examples of lifestyle.

    Gay people HAVE lifestyles, but the FACT of sexual orientation isn't a "style," any more than skin color is a "style."

    I learn so much from your posts, Ari, and thanks.

    Posted by: Lucien | Dec 6, 2013 1:42:42 PM


  5. I do not want to use a Yelp application to find out the personal prejudices of businesses to find out which ones want my business.

    Posted by: Matt Munson | Dec 6, 2013 2:23:56 PM


  6. Yeah, but wait a minute,why does someone get to impose their religious beliefs on an employee, supplying healthcare is part of their pay and benifits.
    Why should the nature of those benifits be relavant if there is negative cost involved, it is more expensive to provide maternity care and then provide care for an additional child than to prevent the birth of another child through the provision of contraceptive care, but in any case the employer should not be inserting themselves into the personal life and autonomy of their employees, this goes to the basics of the entitlement to a private life already decided by the supreme court, the same applies to healthcare and the provision of abortion services - its none of the employers business.

    It is between the insurance provider and the insured
    If freedom of religion applies to employers, does it not also have greater impact on employees if the employer is allowed to insert themselves into their employees choice and practice of religion, effectively, in the case of women determining the level of autonomy and their ability to access sexual health care on an equal basis to men, therefore also creating inequality between male and female employees.

    Surely the whole point of the first ammendment was/is to prevent this sort of nonsense in the first place, by not allowing someone else to impose religion on an other.
    In other words it is the employees choice to decide what health care issues are relavant in the practice of THEIR religion, anything else is intolerable.

    Posted by: renovato | Dec 6, 2013 2:26:42 PM


  7. Even more dangerous, employers could determine that their health insurance plans don't have to cover HIV drugs, blood transfusions, organ transplants, and more. Will a Christian Scientist employer be able to refuse to cover any physician except for so-called "Christian Science healers"?

    Posted by: Michael | Dec 6, 2013 2:51:48 PM


  8. As Michael said, there are more expensive stuff. I never used contraceptives. I suppose they are cheap and doesn't matter if they are covered or not. Just wonder why these people spent so much legal fees on something so frivolous, assuming they are rational people.

    Posted by: simon | Dec 6, 2013 3:30:03 PM


  9. Here is an obvious question for Hobby Lobby. How do they differentiate their religious views in not wanting to pay for birth control coverage for their employees, yet choose to purchase the majority of their inventory from communist China that has a 1 baby per couple rule and practice forced abortions?

    If you are going to take a stand based on your religious beliefs they are open for full examination.

    Posted by: Dearcomrade | Dec 6, 2013 3:39:26 PM


  10. Ari, love you bro! Just wanted to thank you for defending me and standing by me after I drove my homo roommate to suicide! Life is great now! I am have a blast and have forgotten all about that homo roommate of mine! Keep strong Ari!

    Posted by: Dharun Ravi | Dec 6, 2013 3:44:17 PM


  11. I've said it before and I will say it again; If companies owner's religion forbids a medical procedure they have the right to refuse to have that procedure done to them. They should not have the right to impose that on those who work for them. Virtually no employer pays 100% of the premiums so the so they are not providing 100% of the coverage. The employee should be able to say how their portion of the premiums are directed. Now take birth control out of the equation. If the business owner is a Jehovah Witness they do not believe in blood transfusions. If an employee of their's needed a life saving blood transfusion the employer could claim religious exemption to prohibit coverage of the procedure and let that employee who is not of their faith die. The argument is the same. Employers should not be able to play God with the lives of those they employ.

    Posted by: G McGinnis | Dec 6, 2013 5:16:37 PM


  12. Under US law, there's no reason you can't have a for-profit church. It's just not normally done. The distinction between non-profits and for-profits is largely a question on tax law, not under corporate law.

    Whether a company can be compelled to provide certain benefits under the law in not particularly controversial, but there are some caveats. Generally the requirement should have some tangential relationship to the employment ("attachment"), and second, it generally cannot impose an undue burden on the employer. First amendment claims are rare, and mostly involve free speech or assembly, but given how all first amendment cases are treated essentially equally, this could be an exception.

    Posted by: anon | Dec 6, 2013 5:24:27 PM


  13. So, if a corporation owner started a religion that did not believe in the continuation of the species, could they then provide insurance that specifically does not cover pregnancy?

    Posted by: Matt | Dec 6, 2013 6:28:16 PM


  14. It's not just LGBT people who would lose.

    Any religious minority employee would lose. Surely an auto-parts shop that is a Catholic should not be forced to hire, and integrate into its own person, a Wiccan.

    The US needs to nip this in the bud, and pass two amendments:

    (a) Only individuals are people. No corporation or other group of individuals possesses any right of people not explicitly granted to it.
    (b) Religious organizations shall be treated as for-profit corporations, except to the extent that they provide charitable services with no religious component or restriction.

    These will never pass, but nevertheless are necessary.

    Posted by: Randy | Dec 7, 2013 1:23:59 AM


  15. People here are looking at this issue the wrong way. This isn't a matter of this or that group losing. It's a matter of private entities being forced by the government to do something in violation of their conscience. That is the issue you should be analyzing.

    Posted by: David C | Dec 7, 2013 2:40:20 AM


  16. Will a U S Supreme Court in which 6 of the 9 Justices are Roman Catholic rule in favor of contraceptive coverage? They are members of a Church that tells the poor people of Africa who are facing a growing HIV/Aids Epidemic that it is sinful to use contraceptives to prevent the spread of this disease. Even the "friend" of the poor Pope Francis has said nothing to the contrary. The Catholic Hierarchy chooses to allow people to get sick and die in the name of God.

    Posted by: andrew | Dec 7, 2013 3:08:06 AM


  17. Thank you for recognizing that every 'protect religious liberty' case, regardless of the subject matter, has the potential to affect the rights of LGBT people.

    Their whole line of argument is (a) ridiculous, (b) illogical, and (c) dangerous.

    Posted by: Willis | Dec 7, 2013 8:41:34 AM


  18. The whole argument that religious organizations or those that claim a "religious conscience" is bogus from the start. Religion is a choice. You choose, sometimes against your will--for example, Muslims--to be religious. I do not recall in any of the Civil Rights legislation of the 1960's providing a "conscience objection" to give civil equality to African-American citizens. I expect SCOTUS will rule in favour of the "conscience objection" and will establish the precedent that will eventually permit the overturning of virtually all civil-rights legislation, including those we take for granted that give equal access to all.

    Posted by: jamal49 | Dec 7, 2013 1:10:03 PM


  19. So, if a corporation is a person, does it have a right to bear arms ?

    Posted by: Tony | Dec 8, 2013 7:16:33 AM


  20. I'm sorry, but what has buying contraception to do with health care? Health care, if not strictly limited to an INSURABLE ailment will not be fundable in the long run. Insurability is a well-defined term: you can insure things that strike "at random". If people can themselves decide whether they will behave in a way that non-randomly initiates an insurance claim, then this is by definition nothing that can be insured (however, it can be included in coverage by subsidizing it from another source, such as the state's coffers ...). Next would then be elective surgey?

    Posted by: Darragh McCurragh | Dec 8, 2013 8:37:06 AM


  21. Whether a health plan covers abortions or not shouldn't be a factor. An employer cannot demand to know any medical procedure you have had. Hobby Lobby, or anyone else for that matter, has no right or privilege to know if you have had an abortion or not.

    Posted by: Garst | Dec 8, 2013 4:54:09 PM


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