Birth Control Mandate Cases Reaching Critical Mass; Possible Outcomes

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By William Peacock, Esq. on September 20, 2013 3:52 PM

We were pretty sure that the Supreme Court would step in after the Tenth Circuit's ruling in the Hobby Lobby case led to a circuit split over whether corporate personhood gave those corporations religious rights, especially in light of the Religious Freedom Restoration Act (RFRA).

Earlier this week, the Sixth Circuit joined the fracas, and agreed with the Third Circuit, holding that a corporation "is not a 'person' capable of 'religious exercise' as intended by RFRA." With seventy-two cases now pending across the country, and circuit courts lining up on each side of the battle, punting on the case might not be a realistic option for the Supreme Court.

Here are a few possible outcomes and view on the issue at hand:

No Certiorari

This seems like the most unlikely outcome, as punting on the case would mean a national insurance mandate is enforced unevenly throughout the country, with some circuits requiring birth control and others allowing companies to claim a religious exemption. The court did refuse an appeal of the Tenth Circuit case, though that may have been solely to allow the case to work its way out in the lower courts.

RFRA Applies to Corporations

Citizens United, to put it simply, held that corporations, legally, are people with free speech rights. People also have free exercise rights bolstered even further by the RFRA. Though the RFRA doesn't explicitly define "person" to include or exclude corporations, the default Dictionary Act for the entire U.S. Code, which applies in the absence of other definitions or clear legislative intent, does include corporations in the definition of "person."

RFRA Doesn't Apply to Corporations

The money quote from the Sixth Circuit's recent holding summarized this viewpoint quite aptly. "[I]ncorporation'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." The owners' religious rights and beliefs are not the same as the secular corporation's.

As for the Dictionary Act and statutory interpretation, the Sixth relied upon legislative history and statutory context to hold that the RFRA doesn't extend its protections to corporations.

If cert is granted, we really ought to start a pool on how long it'll take Scalia's head to explode at the use of legislative history over statutory definitions.

Incidental Burden

The Fourth Circuit didn't actually reach the question of the birth control mandate. They punted on the issue, as the birth control regulation wasn't implemented until after Liberty University had brought suit against the ACA itself.

Nonetheless, the court upheld the general Obamacase employer-provided insurance mandate, despite the incidental burden on religious beliefs caused by the abortion provisions of the law. The same logic may apply to the birth control mandate, which is opposed, in part, due to the requirement to provide abortifacients (such as the morning-after pill).

Because the law is one of general applicability, it doesn't implicate the Free Exercise clause, even if it does impose an incidental burden on religion. As for the RFRA, the law requires "substantial pressure on an adherent to modify his behavior and to violate his beliefs."

If, as the Fourth ruled, providing abortion in limited cases doesn't amount to a substantial burden, does providing morning-after pills and other contraception hit the mark?

Wildcard

Posting predictions is a fun game, but how many times have we been shocked by the court in recent years? (Citizens United, National Federation of Independent Business, etc.)

The court could rely on any, or all, of these arguments. Or Scalia could write a seventy-five page rant on legislative history, Thomas could write about the Commerce Clause jurispruence, and Roberts could shock everyone by upholding another Obamacare mandate. Only time, and cert, will tell.

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