Hobby Lobby Case Orals Tomorrow

And Also: I allude to the recent Arizona bill vetoed by the governor below. It was in part in response to a pending lawsuit, which SCOTUS still might grant cert. to hear, regarding a corporate wedding photographing firm. Prof. Dorf's "can of worms" analysis (Kinkos?) is telling, and when Prof. Volokh blogged about it, I and others noted it. Response? Crickets from his end, though I gather it is dealt in a footnote in one of his articles or something.

Also, in the "let's stretch things too far" area, ML addresses a corporate law argument. Nonetheless, it is possible this will be used as a sort of limited ruling. We shall see how it goes.

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. ... These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment.

-- Planned Parenthood v. Casey 

The Declaration of Independence argues that governments are established "to secure" are basic rights (the wording suggests this is the seminal reason, not economic or other reasons). Positive rights and benefits are one way this is done. Liberty is not just a matter of freedom from constraint of the state. This is particular true in the modern welfare ("general welfare" a basic reason for the Constitution as noted by the Preamble) state with a certain social welfare net. Health care is a generally accepted part of this and the PPACA was a major step forward in our country's joining with most countries in the developed world in this area, clearly our fellow "First World" countries. This is the bottom line as the USSC is about to hear the "contraceptive mandate" cases.

In these cases, the shifting of a burden to third parties would involve even more than economics and personal health, as significant as they are. Denying coverage of the most effective methods (or, in some cases, all methods) of contraception leads predictably and directly to unintended pregnancies. Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue. For all women, denying practical access to the method of contraception that is right for their health and life circumstances and the well-being of their families can represent a most serious incursion into their individual moral autonomy and the course of their lives.

Since the federal government has to balance various concerns, including defending RFRA when there are some good arguments that it as a whole is problematic, amici and others are very important to provide the full picture of what is at stake. Thus, e.g., they provide a direct voice for the employees (and in other cases students) who would be harmed without the coverage protected here. An amicus brief by Dawn Johnsen (filibustered when appointed for leadership of the OLC in part for her past reproductive liberty advocacy) and Walter Dellinger (former solicitor general).  It is a good place to get a summary of the to be blunt right side of this debate though I will toss in various other material given the breadth of issues and good analysis.  For instance, Marty Lederman's ongoing Balkanization posts on this issue is cited by the brief itself. 

The brief is written on behalf of a reproductive health organization and personally for an expert in reproductive health and member of the Institute of Medicine. It is off IOM's recommendation regarding "eight recommendations for strengthening preventive health care services" that contraceptives are a necessary aspect of health insurance plans pursuant to the PPACA.  When some people wonder, it is soooooo strange, why this provision is in there, that is a good place to start. And, it is not just some pro-sex or birth control deal either. Again, as seen there, contraceptives are but ONE aspect of preventive health, if of special importance, including its ideological baggage.

To cover the bases, one cheap shot trope is the reference to "free" birth control. As compared to what? Free pregnancy care or any number of other things covered by health insurance?  It is not "free" anyway -- there is no "free lunch" as they say.  This discussion fits the provision within a range of social welfare provisions.  That is one way to look at it -- is social security or child health coverage "free"?  Or, public education?  If so, does that make it bad?  Still, it isn't really free for employees at issue in the two firms at issue here.  I feel like I'm talking to children when pointing this out, if particularly dim ones, but employees are getting compensated for work here.  The birth control is not just being handed out free at the mall or something.

The real "financial windfall" as noted by the brief might be the other way -- getting the tax break in place for providing health insurance (there is no actual "mandate" except when you choose to have coverage) without needing to provide basic aspects of the insurance.  Ditto getting benefits of religious and/or non-profit corporations while acting in most respects like a secular for-profit.  This is a major issue in the case -- RFRA "restores," but the corporate religious liberty being claimed here is a novel claim.  Individuals have religious liberty; corporations have some rights as persons (this confuses some on my side) such as the right to sue and some free speech rights. But, free exercise is a personal right.  Corporations don't pray or take communion. These are not also the special category of religious corporations.  As one of the last two analyses remind us:

The very goal of the corporate form is to separate the person from the entity, shielding the person from obligation and liability and ensuring that the entity focuses on profit maximization. As the Supreme Court has noted, “incorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those of the natural individuals who created it, who own it, or whom it employs.”

As to how "cheap" ($9 is a favorite amount), the lede brief goes into detail on how it is not cheap (though even as low as $50 has been shown to lead some not to use contraceptives, short term needs leading to bad long term decision-making -- shades of Justice Blackmun's "another world" reminder).  An important point here is that certain contraceptive choices are more much more effective, meaning the coverage here is important in respect to many who use some means. These means can be a matter of hundreds of dollars in upfront costs, not even taking into consideration those with special needs.  It is far from "cheap" and the return here furthers not even the health of the employees (and their dependents, be it daughters or spouses etc., so yeah, men's coverage matter too), but also healthier children.  Spacing of children is in a common sense fashion important there.

These are quite significant concerns and denial of coverage can be quite burdensome.  This is why twenty-eight states already have some form of a requirement to provide equal coverage of prescription drugs, which underlines this is not just some "Obama" thing.  The requirement here is  nation-wide and more comprehensive, sort of like a national ban covering employing children as compared to varied state requirements.  Employers are not "mandated" to provide coverage, except to the degree they wish to get the tax break in place, others helping to pay for the benefits of others or the negative costs arising from lack of coverage.  JUST like some opponents argue should be done -- the federal government in various ways do provide reproductive health costs to the nation at large (note how even counseling about usage is rejected here). But, some want to have their cake (tax break) and eat it too (not providing the coverage required). 

Gender equality and reproductive liberty alone are compelling interests, which is not and should not just be a "left" or "feminist" thing.  The law here, however, is particularly concerned about health, and not just for the employees themselves.  As noted by the brief, the USSC has held that accommodations provided for religious reasons might be allowed but "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries."  Denial of basic health care (down to counseling) etc. is such a "substantial" imposition.  The fact it is a benefit does not trump -- government benefits are basic things as noted above and selectively denying them for religious beliefs is trouble.  How about if a minimum wage law was at issue? 

Meanwhile, the employer does not have a "substantial" burden, here not being required to have health insurance and not directly providing the services involved.  It takes some doing to explain how this is different from providing a salary that can be used in ways the employer does not like.  The immediate concern here is a claimed statutory religious exemption (Oregon v. Smith blocking a claim based on the First Amendment, though there is a weaker claim that the provision here is being singled out, others getting exemptions so religious claimants should too ... this falls upon scrutiny).  But, talk of "free birth control" and anti-PPACA language (or companies only now deciding what they have been doing for years is against their faith) suggests one should be wary.  As one article noted cited, an actual evenhanded approach here (mandated by the 1A) is far reaching:

If Hobby Lobby can deny contraception coverage, can a Jehovah Witness corporation refuse to cover blood transfusions, or a Scientology corporation refuse to cover psychiatric services? What about employers with religious objections to homosexuality who want to deny spousal benefits to same-sex married couples?

A religious employer can and does fire people for doing things with their salary that the employer does not like, such as a teacher who has sex out of wedlock or pays for an abortion.  There is a constitutional interest there -- the "ministerial exemption" of a recent case.  But, this is not the "internal" concerns of such a religious institution, but the public marketplace.  There, see U.S. v. Lee, you cannot "impose the religious employer's faith on the employees."  This is the sort of case RFRA is supposed to have "restored" us too.  I remain of the belief that it is nearly on "all fours" and find the argument otherwise specious.  Marty Lederman's analysis underlines this too is a tax case.  If anything, as he noted at one point, the employers here have more discretion. 

Many are scornful that contraceptives are being targeted here because the vast number of people, including Catholics, use them. By their actions, such "values voters" show that one can be "religious" and support birth control.  For instance, some websites can be found that are quite sex friendly, if for the right sort of couples, and contraceptives (especially in certain cases) could further this "God honored" union.  In the 1960s, there was a strong belief even among many Catholic theorists that this would be appropriate.  The two firms here, however, say they are only concerned with abortifacients.  I personally think our current policy about abortion is illegitimately not religiously neutral, certain beliefs on abortion singled out as grounds to deny health coverage (even when pregnancy significantly is harmful to health) and grant special exemptions. Marty Lederman, however, explains that even granting that, the claims here are trying to push things further.  As with religious exemptions generally, some degree of balance is essential here. 

And, putting aside that even counseling is involved here, many of these lawsuits do cover birth control generally.  Even if, dubiously, stretch the word "abortifacient" to cover the drugs here.  The intrusive result of a win is also notable, especially if we provide an evenhanded rule -- employers, even for profit corporations with the special state benefits that entails, would have the right to micromanage your health choices, determining if such and such is "really" for a "moral" reason based on idiosyncratic religious and conscience belief systems.  Repeated attempts to point this out online underline to me that some are more concerned with personal beliefs about certain subjects than truly evenhanded religious liberty. Finally, as noted above, giving the individual employee coverage here furthers their own religious rights:

Removing the contraceptive coverage guarantee would place some women with religious objections to abortion in what is for them a morally difficult position: they might desire but be unable to afford the most reliable methods of contraception and therefore be at increased risk for confronting an unintended pregnancy and the difficult decisions that ensue.

It simply is not typical to consider stopped a fertilized egg implanting (even if, and scientific evidence appears to hold it very unlikely, though it is accepted for purposes of the current lawsuit as possible, this is actually occurring here) an "abortion." The word is tossed out as a sort of scare word and is very misleading.  But, even there, the broader argument on the other side will inhibit usage of the most effective birth control even when there is simply no chance of even that sort of "abortion."  And, at worse, the vast number will see a morning after pill or IUD as a much less immoral alternative to abortion (or bringing to term a child they deem unable to care for etc.).  The contraceptive policy here therefore reduces abortions while furthering religious liberty, the latter in respect to the people much more directly "burdened." 

These are the sorts of things the justices, including Justice Kagan who in the past lacked a certain amount of perspective in respect to RFRA (but a lot of water has flowed under the bridge since the 1990s, including opposition to a broad religious exemption law in Arizona recently), should consider tomorrow.  The compelling interests of the provision and the can of worms if the firms win should make things clear.  Denial of coverage by the likes of Notre Dame is offensive, even if they are something of a special case.  Allowing it here for a for-profit seller of hobby products is absurd.