A few weeks ago, UEA's Emma Long published a piece on the History News Network on corporate citizenship, 'Obamacare' and the Supreme Court. Here it is in its entirety in re-blogged form:
On November 25, 2013 the
U.S. Supreme Court announced that it would hear argument in a pair of cases
which have the potential to be among the most wide-ranging and controversial
cases of the Court’s current term. For a docket that already includes
affirmative action, public prayer, and campaign finance, that is quite an
achievement. But Sebelius v. Hobby Lobby Stores and Conestoga
Wood Specialties v. Sebelius involve Obamacare, religious liberty,
reproductive health, and questions about the extent of the rights of
corporations. These two cases thus encompass some of the most controversial
issues in U.S. politics.
These two cases are
representative of more than sixty lawsuits filed across the United States which
challenge the section of the Patient Protection and Affordable Care Act, more
often referred to as Obamacare, which requires companies with more than fifty
employees to provide those employees with a minimum level of healthcare
coverage, including access to certain types of contraception and
pregnancy-related healthcare. After long and heated negotiations, churches and
religious non-profit organisations were exempted from this part of Obamacare on
religious grounds. The companies involved in these lawsuits, including Hobby
Lobby which owns a chain of arts and crafts stores across the U.S. and
Conestoga Wood Specialties which makes wooden cabinets, argue that they too
should be exempt from this law on the grounds of religious freedom. The owners
of these companies assert that they formed and run their companies along lines
dictated by their religious faith; requiring them to pay for healthcare which
includes certain kinds of contraception, they argue, violates their
fundamentally held beliefs as embodied in these companies and thus impermissibly
and unconstitutionally burdens their right to the free exercise of their
religion.
The Obama administration
has argued in return that these are businesses, not individuals of faith nor
religious organisations, and thus are not eligible for exemption.
Viewed simply on religious
freedom grounds, it seems unlikely that this case would win the majority of the
Court. Historically the Court has held that facially neutral laws (i.e. those
that do not differentiate on the grounds of faith) which incidentally impact on
the religious beliefs or practices of individuals or groups are acceptable. The
healthcare mandate does not define its application by religion and therefore
appears to fit easily into the Court’s precedents.
In addition, a finding in
favour of the company runs the risk of entangling courts across the country in
an area that the Supreme Court has consistently denied the judiciary has any
role in.
Traditionally the Court has
steered clear of making decisions in which it has to decide what can or should
be classed as faith or religious belief (for example, disputes between divided
congregations or questions of ministerial duty). The danger should the Court
find in favour of Hobby Lobby and Conestoga Wood Specialties is that courts and
governments around the U.S. will find themselves having to address the
question: is this company “religious”? Or, even more dangerously for religious
freedom, is this company religious enough? Given that the Court has been
reluctant to involve itself in such questions, it seems unlikely that a
majority would be willing to hand that responsibility over to lower courts or
other branches of government.
However, the great
unanswered question surrounding this case comes in the form of the Court’s
controversial 2010 ruling in Citizens United v. Federal Election
Commission. There the Court, with a 5 to 4 majority, held that
corporations, in the form of spending in political campaigns, could “speak” and
thus had free speech rights that were protected by the First Amendment. Exactly
how far this ruling goes has yet to be challenged. But, if companies can speak,
then maybe, just maybe, they can hold and express religious beliefs too. If a
majority of the justices are willing to view the cases in this light then the
companies might prevail.
Support for this approach
is provided by the 1993 Religious Freedom Restoration Act, a federal law that
states the government cannot impose a “substantial burden on a person’s
exercise of religion,” unless there is “a compelling governmental interest.” A
burden incidental to a facially-neutral law may be held to violate the
Constitution unless the government can prove that the law fulfils such a
compelling interest. Universal health coverage for all would, at least for
supporters of Obamacare, meet such a test; critics, of course, argue otherwise.
The Supreme Court’s
decision to take these cases is not surprising. The lower courts, the Tenth
Circuit for Hobby Lobby and the Third Circuit for Conestoga,
divided on the results and reasoning in these cases. In the former, the Tenth
Circuit found in favour of Hobby Lobby, holding that the company was a person
under RFRA and that there was no compelling interest to justify the burden on
its religious beliefs represented by the healthcare mandate. The Third Circuit,
however, ruled that secular, for-profit organisations like Conestoga Wood
Specialties cannot engage in religious exercise and ruled against the company.
Since historically division among the lower courts has been an indicator of
likely Supreme Court involvement, commentators had been anticipating that this
issue would eventually make its way to the Court’s docket.
What might be the potential
consequences of the Court’s ruling? A decision rejecting the companies’ request
for exemption from the healthcare mandate would, in effect, put an end to the
lawsuits currently being heard across the U.S. and require those companies
covered by the Act to provide healthcare including contraception and
pregnancy-related healthcare to their employees. Potentially it would also
recognise limits to the rights of companies that were expressed in Citizens
United. And it would also provide a boost to the fortunes of the
beleaguered Patient Protection and Affordable Care Act. According to the
companies and their supporters, such a ruling would also impose heavy burdens
on the rights of religious freedom for those of faith who choose to run their
businesses with a religious ethos.
Should the Court rule in
favour of the companies’ claims, at the very least Obamacare would take a
significant knock, potentially encouraging further challenges. In addition, the
rights and status of corporations and businesses would be expanded
significantly beyond their current position: if companies can speak and be
religious, what other protections embodied in the Bill of Rights might then be
claimed? For many women, the consequence could be making a choice of employment
based on the type of healthcare provided, or giving up the right to choose
certain contraception methods in favour of employment with one of these
companies, a choice not to be taken lightly in the current financial
circumstances.
There is, therefore, a
great deal at stake in Sebelius v. Hobby Lobby Stores and Conestoga
Wood Specialties v. Sebelius. Those with an interest in religious freedom,
privacy and reproductive rights, the status of corporations, and, of course,
the Patient Protection and Affordable Care Act will undoubtedly be watching
with interest.