The U.S. Supreme Court’s 5-4 decision in Burwell v. Hobby Lobby Stores, Inc. that a closely-held for-profit corporation can deny contraception coverage under the Affordable Care Act (ACA) to its female employees was based on twisted legal reasoning, lies and bigotry, producing a despicable result.
The court’s five-man majority of Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Anthony Kennedy began with their favorite legal lie that a corporation is a “person,” when in reality a person is a living, breathing human being. A corporation is an artificial entity, in business to make a profit.
Following from this dishonest premise, Alito, in his majority opinion, ruled that the Religious Freedom Restoration Act (RFRA) of 1993 applies to for-profit corporations if they are closely-held, defined as five or fewer people owning more than 50 percent of the stock, with the owners’ religious beliefs applying to their corporation.
This unprecedented ruling pierces the corporate veil, for a corporation is formed in the first place to protect its owners from legal liability for the corporation’s actions. In making this absurd ruling that a for-profit corporation can have religious beliefs, the court’s majority said the owners can have their cake and eat it, too.
This ruling applies widely throughout the economy, for 90 percent of American corporations are closely-held, and they employ 52 percent of American workers. Hobby Lobby, the main plaintiff, is no mom-and-pop shop. A $3.3 billion company, it operates 570 hobby and craft stores, with 13,000 employees. Hobby Lobby’s arguments were supported by Michigan Attorney General Bill Schuette.
The RFRA is designed to prevent the government from burdening the free exercise of religion. Hobby Lobby’s Christian fundamentalist owners, the Green family, singled out the ACA provision allowing free contraceptives for women, part of its free preventive care mandate, for a claim that it violated their anti-abortion religious beliefs. But their claim of “religious freedom” is really nothing more than religious tyranny, imposing their religious beliefs on their employees, who partially pay for their health insurance.
The Greens falsely claimed that such contraceptives as morning after pills and intrauterine devices, which prevent fertilized eggs from being implanted in the womb, are tantamount to abortion. But abortion is termination of a pregnancy, and these contraceptives prevent pregnancy in the first place.
Hobby Lobby was hypocritical in making its religious claims, for its 401k plan has invested $73 million in companies that produce contraceptives, and most of the products it sells are made in China, where abortion is mandatory under some circumstances.
By ruling in favor of Hobby Lobby, that the rights of a corporation trump the rights of an individual human being, the court’s majority completely disregarded a woman’s right to make her own health care decisions, instead allowing her boss to interfere in the doctor-patient relationship. It also disregarded the woman employee’s personal right to health care coverage under the ACA’s individual mandate, as well as the compelling government interest in public health and women’s well-being.
A more crass expression of the court majority’s attitude came from Rush Limbaugh, who said, "When did birth control pills become so important to the human condition that the federal government requires every insurance policy to cover them? Pregnancy is something that you have to do to cause. Yet they wouldn't have the problem if they didn't do a certain thing. It's that simple."
Here Limbaugh displayed the bizarre belief that sex is strictly for procreation. This sounds very strange, to say the least, coming from a guy who has been married four times and has no kids.
As it is, the overwhelming majority of American women use contraceptives at some point in their lives, with 58 percent using them for medical reasons other than birth control. Some contraceptives, if not covered by insurance, can cost a month’s pay for a woman earning the minimum wage.
Dissenting in this case were Justices Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer.
In writing the main dissenting opinion, Ginsburg said, “There is in the case law no support for the notion that free exercise rights pertain to for-profit corporations. Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious exemption from a generally applicable law…. The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial entities.”
While Alito’s majority opinion limited the court’s ruling to the matters and facts at hand, Ginsburg warned that the Hobby Lobby decision could be the start of a slippery slope.
“Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private,” she said. “No known understanding of the term “person” includes some but not all corporations. . . . No conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”
Ginsburg added that this ruling allows corporations to line item veto federal law on the basis of religious belief. “The Court’s expansive notion of corporate personhood…invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith,” she said.
In allowing an employer to come between a woman and her doctor, Ginsburg noted that employers could claim “religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists): medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews and Hindus); and vaccinations (Christian Scientists, among others).”
Ginsburg concluded, “The court, I fear, has ventured into a minefield.”
Within a few days, Ginsburg’s fear of a slippery slope began to come true in a case regarding Wheaton College, a small evangelical college in the Chicago area.
When a religious-affiliated school objects to providing contraceptive coverage, the Obama administration has the insurance company pay for it. In such cases, a school that refuses to provide coverage must sign a release that allows the insurance company to pay. But Wheaton College refused to sign the release, claiming it to be burdensome, resulting in pending litigation.
The Supreme Court approved an injunction, preventing the government from requiring Wheaton College to comply with the release requirement while the case is pending. This ruling drew a vigorous dissent from Sotomayor.
The Hobby Lobby travesty was made possible by the dishonest claim that corporations are “persons” and the idiocy of tying health insurance to employment. It also exposed the weakness of S.J. Res. 19, a proposed constitutional amendment designed to restore campaign finance regulations, in not declaring that a corporation isn’t a person.
An administrative remedy for the Hobby Lobby decision is to have the federal government or the insurance company pay for contraceptive coverage. There has also been an attempt at a legislative solution, following in the long tradition of Congress fixing bad Supreme Court decisions.
Last week, Sens. Patty Murray (D-WA) and Mark Udall (D-CO) introduced the Protect Women’s Health from Corporate Interference Act, S. 2578. This bill has since been introduced in the House. If enacted, it would prevent for-profit corporations from denying federally-mandated health care coverage to their employees by exempting such services from the RFRA.
Senate Majority Leader Harry Reid put the bill on the fast track and it reached the Senate floor yesterday. It immediately ran into a Republican filibuster. It takes 60 votes for cloture to allow an up-or-down vote on the bill, and supporters fell short, with a 56-43 vote in favor of it.
The vote split almost entirely along party lines. Every Democrat present, including Michigan’s Carl Levin and Debbie Stabenow, along with the two independents who caucus with them, voted for the bill, with the exception of Reid, who voted “no” for procedural reasons, enabling him to bring the bill back for reconsideration. Republicans were opposed by 42-3, with only Sens. Lisa Murkowski (R-AK), Mark Kirk (R-IL) and Susan Collins (R-ME) voting for it.
With Republicans controlling the House, the bill is unlikely to even get out of committee. A matter that appeared to have been settled back in the 1960s, look for contraception coverage to be a campaign issue in the Nov. 4 election.