The U. S. Supreme Court is considering two cases that could strike a blow to an important provision of the Affordable Care Act affecting women’s health and reproductive rights.
The ACA requires most employer health care plans to cover 20 named contraceptives, a recognition that women should have access to means of preventing unwanted pregnancies. Some charge that women should be responsible for their own birth control and, in any event, contraceptives are relatively inexpensive.
Certainly, all persons should be responsible for their personal lives, especially men as potential fathers, but that begs the question of women’s financial ability to afford contraceptives. Many women struggle to buy the necessities of life and do not have money to purchase contraceptives regularly. The ACA provisions addressing that reality must stand.
More important is the recognition in law that women as a class have unique health issues that no longer should be ignored in public policy and medical care.
Two privately owned companies, Hobby Lobby, Inc. and Conestoga Wood Specialties, filed separate but similar suits against the government in federal court alleging the ACA requirement to provide certain contraceptives violates the companies’ exercise of religion under the Religious Freedom Restoration Act and the First Amendment. For brevity, this column will focus on the Hobby Lobby case.
Hobby Lobby, owned by the David Green family, has 609 stores and about 13,000 full-time employees. The Greens are devout Christians, and their companies are organized to follow their values.
A key aspect of the Greens’ belief is that human life begins with conception and that it would be immoral to facilitate the death of a human embryo. They believe four of the contraceptives required by the ACA have the potential to terminate the life of an embryo.
The Religious Freedom Restoration Act provides that the government shall not substantially burden a “person’s” exercise of religion unless there is a “compelling government interest” to do so. Relying on statutory and case law, the Tenth Circuit Court of Appeals held that a corporation is a “person” for purposes of the RFRA.
The Court also determined the government’s interest in “public health and gender equality,” in the context of the ACA, does not meet the compelling interest test required by the RFRA.
Because the Court resolved the statutory issue in the companies’ favor, it did not reach the question of whether the ACA violates their First Amendment rights.
The conservative Supreme Court is unlikely to reverse the Court of Appeals’ decision, notwithstanding common sense that a corporation has no religion. A corporation cannot attend church or pray or engage in any act that is uniquely human in nature.
The Congress could and should resolve the “corporation is a person” issue by amending the RFRA to provide that “person” does not include a corporation. That would effectively reverse the Court’s decision and leave the constitutional question unanswered.
Hobby Lobby is not exactly a Mom and Pop operation. The corporation, distinct from its owners, should not be given the legalistic right to impose the Green’s religious beliefs on its 13,000 employees.
Bo Statham is a retired lawyer, congressional aide and businessman. He lives in Gardnerville and can be reached at bostatham@me.com.
