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Julie Delegal: Individuals, Inc.: Hobby Lobby, contraceptives, and you

The United States Supreme Court, in its Hobby Lobby ruling on Monday, raised disturbing questions about the relationships between employers, employees, physicians and insurers. The Court ruled, in a 5-4 decision, that forcing family-owned companies to pay for insurance that covers contraception violates federal religious freedom laws.

The lawsuit: The owners of Hobby Lobby and Conestoga Wood Specialties sued the government because they didn’t want to pay for employee health plans that included certain forms of contraception, as required by the Affordable Healthcare Act. They oppose abortion on religious grounds, and argued they shouldn’t have to share the cost of “abortifacients,” or birth-control methods that, in their view, cause abortions.

Apparently, in the eyes of some abortion opponents, life precedes even pregnancy and dates back to a hypothetical, un-implanted, fertilized egg. It’s telling, though, that Hobby Lobby has no problem investing in corporations that manufacture the verboten methods — Plan B, Ella, and IUDs — to the tune of $73 million.

So who wins? Women employees who, the court concedes, should have unfettered access to birth control? Or for-profit corporations whose owners profess strong “religious” beliefs about certain medical treatments?

For this court, the free-exercise rights of closely held, family-owned corporations trumped the reproductive rights of individual women.

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Corporations are people, too: Corporations and not just individual humans, the court majority wrote, are capable of exercising religion. According to Justice Ruth Bader Ginsburg, however, the Hobby Lobby decision marks the first time that free-exercise rights, whether statutory or constitutional, have been extended to for-profit corporations.

Ginsburg, a heretic in our post-Citizens United republic, reminds us that corporations are merely legal instruments, and not natural persons. She observed that Hobby Lobby and Conestoga, unlike non-profit churches and synagogues, don’t exist primarily to practice or propagate religion. It’s not their central function. These companies exist for the same reason that all secular, for-profit ventures do: to make money.

While the court majority gave more weight to corporate owners’ religious preferences, Ginsburg gave more weight to the reproductive rights of women, citing evidence of the disproportionate burden women face when obtaining medical services. Prior to the enactment of the ACA, for example, women of childbearing age paid 68 percent more in out-of-pocket medical expenses than men did.

The majority agreed that providing women open access to birth control is important. But, they opined, the government could have provided that access in a less restrictive manner. The court majority suggested that the government could have created a new program to supply contraceptives to women. Alternately, the court recommended exempting for-profit corporations from the ACA’s birth control provisions in the same manner that it permits exemptions for non-profit religious organizations.

But there are two problems with the court’s exemption-for-religious-reasons idea.

Legislating from the bench: First, the court can’t legislate. Second, the branch of government that can legislate already considered the idea and ultimately voted it down. To include the “conscience amendment,” as Sen. Barbara Mikulski observed during Senate proceedings, would have “put the personal opinions of employers or insurers over the practice of medicine.” Instead, Congress decided to leave medical decisions where they belong: between patients and their doctors.

But that didn’t stop the five men who invented free-exercise rights for for-profit corporations. In a deftly written sentence that ignores more than two centuries of law aimed at protecting individuals from the “tyranny of the majority,” the justices essentially sanctioned the tyranny of a legal fiction — a corporation — over living, breathing individuals. “Protecting the free-exercise rights of closely held corporations,” the court reasoned, “thus protects the religious liberty of the humans who own and control them.”

In other words, the religious liberty of a group of individuals — if that group has organized into a profit-making organization — can trump the rights of, you know, plain old, unaffiliated humans.

Religion and reasonability: Granting corporations rights that were once reserved to human beings is troubling enough. But consider this statement by the majority: “It is not for the Court to say that the religious beliefs of the plaintiffs are mistaken or unreasonable.”

Really?

Suppose your employer believes, as a matter of religious faith, that all mental illness is “spiritual warfare”. Can it reasonably stop paying for behavioral health coverage?

Or maybe your employer believes that autism is caused by demonic possession. Can it reasonably forego paying for your son’s treatment?

Could your employer, who fervently espouses Right to Life tenets, reasonably prevent you from executing a living will as a condition for employer-paid health insurance?

These unanswered questions are a legal “minefield,” to borrow Ginsburg’s word. And the minefield could well extend beyond medical issues. Suppose the owners of a for-profit corporation don’t “believe” in climate change because of their religion. Would they have to obey various EPA mandates related to carbon-reduction?

The court’s response to these types of concerns was basically, “Bring us your challenges, and, case by case, we’ll do the balancing for you.” But what are the chances that an individual’s rights can survive against the agglomerated authority of others — organized, powerful and rich corporations?

With this Supreme Court, the chances are evidently slim to none. Our nation’s founders knew that a constitutional framework could help protect the rights of individual Americans from the tyranny of mob rule. But who, if not the United State Supreme Court, will protect us from the tyranny of corporations?

Julie Delegal, a University of Florida alumna, is a contributor for Folio Weekly, Jacksonville’s alternative weekly, and writes for the family business, Delegal Law Offices. She lives in Jacksonville. Column courtesy of Context Florida.

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