Yet another appeals court has issued an opinion about a for-profit corporation’s challenge to the contraceptive mandate of the Affordable Care Act. The mandate requires employee health care plans to contain preventive care coverage that includes FDA-approved contraceptive methods and sterilization procedures. This time, the D.C. Circuit ruled in Gilardi v. HHS that the Gilardis, two Catholic brothers who own Freshway Foods and Freshway Logistics and oppose contraception, sterilization and abortion, are entitled to a preliminary injunction because they are likely to succeed on their claim that the mandate violates their free exercise rights as well as the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from “substantially burden[ing] a person’s exercise of religion.” The D.C. Circuit’s action is consistent with the Tenth Circuit’s ruling that the arts-and-crafts chain Hobby Lobby demonstrated that the mandate substantially burdened its exercise of religion, but at odds with rulings against secular, for-profit companies and for the government by the Third and Sixth Circuits.
One aspect of Gilardi is distinctive. Although the Third and Sixth Circuits, ruling for the government, decided that for-profit, secular corporations cannot exercise religion under either the Free Exercise Clause or RFRA, the Tenth Circuit, in support of Hobby Lobby, determined that such corporations are persons who can exercise religion under RFRA. The D.C. Circuit offered a hybrid. Although two judges – Janice Rogers Brown and A. Raymond Randolph – ruled that the Freshway Companies are not persons under either the Free Exercise Clause or RFRA, they nonetheless held that the Gilardis could bring suit because the Freshway Companies are closely held corporations with only the two brothers as owners and shareholders. In that context, the court decided, the brothers suffered a concrete and personal injury and could likely prove that their religion was substantially burdened by the mandate.
The diverse circuit court rulings risk turning the contraceptive mandate issue into a debate over corporate form and institutional rights. If corporations engage in speech under the First Amendment – Citizens United – why can’t they exercise religion?
The government shutdown may have ended, but the hardline conservative attack on the Affordable Care Act hasn’t. In the coming months, the Supreme Court will decide whether to hear challenges brought by secular, for-profit corporations and their owners to a key provision of the ACA that requires certain employers to provide female employees with health insurance that covers all FDA-approved contraceptives. The ACA already exempts religious employers from the duty to provide contraceptive coverage, but these secular, for-profit corporations insist they are entitled to exemption as well. In its own challenge earlier this year, Hobby Lobby, an arts and crafts chain, succeeded in persuading the United States Court of Appeals for the Tenth Circuit to accept a truly remarkable proposition: that the corporate entity itself is a person exercising religion and is entitled, on grounds of religious conscience, to deny its female employees health insurance coverage for FDA-approved contraceptives. Two other federal circuits have rejected this analysis, and the Supreme Court has been asked to resolve the split between the federal courts of appeal. If, as is widely expected, the Court agrees to hear Hobby Lobby, the case will be vitally important on a broad range of issues: corporate personhood and the rights of business corporations, women’s health, employee rights, the role of religion in the workplace and more.
In the 225 years since the ratification of the Constitution, the Supreme Court has never held that secular, for-profit corporations are entitled to the Constitution’s protection of the free exercise religion. As we explain more fully in this legal brief and issue brief, it should not do so now.
From the Founding on, the Constitution’s protection of religious liberty has always been seen as a personal right, inextricably linked to the human capacity to express devotion to a God and act on the basis of reason and conscience. Business corporations, quite properly, have never shared in this fundamental aspect of our constitutional traditions for the obvious reason that a business corporation lacks the basic human capacities – reason, dignity, and conscience – at the core of the Free Exercise Clause. No decision of the Supreme Court, not even Citizens United, has ever invested business corporations with the basic rights of human dignity and conscience. To do so would be a mistake of huge proportions, deeply inconsistent with the text and history of the Constitution and the precedents of the Supreme Court.
Former Attorney General Edwin Meese III is frequently credited with helping to pack the federal bench with judges that adhere to strict construction or orignalism, a method of trying to interpret today’s legal controversies through the lens of the Constitution’s framers.
Meese a member of the Federalist Society’s Board of Directors, has also been instrumental in the shutdown of the federal government over the 2010 landmark health care law, the Affordable Care Act. In an extensive piece for The New York Times, Sheryl Gay Stolberg and Mike Mcintire note that he helped launch a “loose-knit coalition of conservative activists” early in Obama’s second term to craft a new push to “repeal” the Affordable Care Act.
“It articulated a take-no-prisoners legislative strategy that has long percolated in conservative circles: that Republicans could derail the health care overhaul if conservative lawmakers were willing to push fellow Republicans – including their cautious leaders – into cutting off financing for the entire federal government.”
The Meese coalition created a defunding “tool kit” with talking points saying it “simply is calling to fund the entire government except for the Affordable Care Act/Obamacare.”
Meese, as the newspaper notes, also helped launch a group, the Conservative Action Project (CAP) to peddle the defunding plan. Its “welcome friends!” message says President Obama “is trying to remake our government and economy into the image of today’s European social welfare state.”
Groups like the Heritage Foundation, where Meese is the Ronald Reagan Chair in Public Policy, and the billionaire Koch brothers have also been involved in pushing the defunding campaign, which has led to the shutdown.
As noted here, scholars and prominent commentators have blasted the strategy as undermining and endangering democratic processes. The Affordable Care Act became law after extensive debate in Congress, survived a constitutional challenge by lawmakers, and the House’s outlandish number of votes to repeal the law have been for naught. And yes, as The Dish’s Andrew Sullivan noted, the American electorate spoke clearly in 2012 when Obama won a second term in strong fashion.
House Speaker John Boehner remains obstinate – the president and Senate must agree to delay or greatly hobble the Affordable Care Act or the government shutdown continues. The New York Times’ Editorial Board correctly dubs it “John Boehner’s Shutdown.”
Others have rightly taken note that Boehner and a faction of House Republicans are also waging an assault on the Constitution and democracy.
How does one party that has lost two presidential elections and a Supreme Court case – as well as two Senate elections – think it has the right to shut down the entire government and destroy the full faith and credit of the United States Treasury to get its way on universal healthcare now? I see no quid pro quo even. Just pure blackmail, resting on understandable and predictable public concern whenever a major reform is enacted. But what has to be resisted is any idea that this is government or politics as usual. It is an attack on the governance and the constitutional order of the United States.
Geoffrey R. Stone, a distinguished law professor at the University of Chicago, has also weighed in, blasting the House Republicans' outlandish attack on “democratic governance.”
In piece for The Huffington Post, Stone says there is only one side to blame here. As Sullivan and many others have pointed out, Republicans’ efforts to kill Obamacare in the courts, in Congress and in a presidential election were futile. Regardless of what mainstream pundits say, this is not a system broken or perverted by both parties and the president. This is all about Republicans who refuse to play by democratic processes.
Stone doesn’t mince words, calling the House Republicans’ behavior “nothing less than a perverse and unconscionable betrayal of our democracy.”
Stone explains, “House Republicans who do not have the votes to repeal Obamacare through the processes of democracy threatened to close the federal government, to throw hundreds of thousands of innocent government employees out of work, and to damage the nation’s economy unless the Senate and the President acceded to their demands. By threatening to wreak havoc with the national interest and inflicting serious harm on hard-working, loyal public employees, they are attempting to coerce rather than to persuade the government into doing what they want. The House Republicans, in short, are holding the nation itself hostage to their demands. This is not democratic governance. This is extortion, plain and simple. In any other circumstances, this would be criminal conduct.”
Environmental law is safe from legal challenge under the Spending Clause’s new coercion doctrine. That’s the bottom line of Erin Ryan’s new ACS Issue Brief. Professor Ryan, an associate professor at Lewis & Clark Law School, is an expert on environmental and natural resources law and federalism. Her issue brief makes a compelling case that the federal environmental grant programs are not likely vulnerable under the new coercion doctrine that emerged two Terms ago in NFIB v. Sebelius, in which the Supreme Court largely upheld the Affordable Care Act but, significantly, struck down the Act’s expansion of Medicaid as unconstitutionally coercive under the Spending Clause.
I agree with Professor Ryan’s analysis and want to make the case that the same is true about federal education law. In fact, as the second highest source of federal support to the states after Medicaid, federal education law makes a good case study under the new coercion doctrine. If the federal education laws are likely to succumb to the doctrine’s constraints, then maybe the Court’s Medicaid decision is just the tip of the iceberg, and a lot of federal spending programs are going down. If, on the other hand, the federal education laws are not likely to be problematic under the new coercion doctrine, then conditional spending in the federal regulatory state is likely to survive relatively unscathed. My work suggests that this second story is more persuasive.
As Professor Ryan notes, the NFIB Court’s fractured opinions failed to set forth the terms of the new coercion doctrine with anything like precision, but consensus is emerging that the doctrine has essentially three parts. (For the plurality, that is; the joint dissent -- in agreement with the plurality that the Medicaid expansion was coercive -- would focus only on the last part.) First, does the condition in question threaten to take away funds for a separate and independent program, or does the condition merely govern the use of the funds? If it just governs the use of funds, then the program is not coercive.
The second question arises if the condition does threaten funds for an independent program. This question asks whether the states had sufficient notice at the time they accepted funds for the first program that they would also have to comply with the second program. If they did, then the inquiry ends once more with the conclusion that the program is not coercive.
The third question arises only if there was no such notice. This question asks whether the amount of funding at stake is so significant that the threat to withdraw it constitutes what the plurality calls “economic dragooning.” Only if this last question is reached and the answer is yes would a program be coercive.