The Hobby Lobby v Sebelius case is extremely important in its determination of whether business owners, acting as corporate agents, have a right to freely exercise religion through their companies. However, since its inception the case has been riddled with misconceptions about everything from precedents of corporations to exercise religion to whether Plan B is an abortifacient. The following is an attempt to clear up some of the more confusing and pervasive misperceptions surrounding the case.

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This case is about individual rights, not corporate rights.

Hobby Lobby’s challenge to the birth control mandate has often been portrayed as an unprecedented case of government encroachment on individual religious rights, with more conservative outlets going so far as to represent the case as a determination of whether “[business owners] have a right to run their business in a manner consistent with their moral beliefs,” but that is a mischaracterization of the case.

The case would determine whether a business itself is capable of exercising a religious right, and insofar as Hobby Lobby’s owners are individuals, FreedomOutpost.com may have a point. But it ignores the legal precedent that separates individuals from corporations, and accords individuals while acting as corporate agents the rights accorded only to the business, rather than those that would otherwise be accorded to the individuals personally (see below). Therefore, the question of whether a for-profit, secular business can exercise religion under the Free Exercise clause is actually completely germane, not a “smokescreen.” So what rights are purely personal, and what corporate?

It is inaccurate to say that secular, for-profit corporations hold no rights guaranteed under the First Amendment, but whether the application of the Free Speech clause to corporations as decided by the Citizens United ruling also necessitates an extension of the Free Exercise clause depends on whether the latter is considered a “purely personal” right. From the First National Bank of Boston v. Bellotti (1978) ruling, “Certain ‘purely personal’ guarantees, such as the privilege against compulsory self-incrimination, are unavailable to corporations and other organizations because the ‘historic function’ of the particular guarantee has been limited to the protection of individuals…Whether or not a particular guarantee is ‘purely personal’ or is unavailable to corporations for some other reason depends on the nature, history, and purpose of the constitutional provision.”

Whether the extension of the Free Exercise clause extends to corporations, then, depends on whether they are capable of exercising religion and the extent to which legal precedent upholds their right to do so. According to the Third Circuit opinion on the Conestoga Wood Specialties Corp. v. Sebelius case, there is a “total absence of caselaw … in which a for-profit, secular corporation was itself found to have free exercise rights.” It additionally notes that the Supreme Court has previously specified the Free Exercise Clause as an “individual” liberty. In a related case, the Sixth Circuit sided with the Third Circuit in Autocam Corp. v. Sebelius with a unanimous decision that Free Exercise does not extend to secular, for-profit corporations.

However, the water has been muddied by a Tenth Circuit opinion, in which a majority decided that Hobby Lobby has grounds to challenge the birth control mandate of the PPACA under the Religious Freedom Restoration Act for two reasons. First, in the RFRA, the term “person” was not explicitly defined to exclude corporations and so, by the Dictionary Act, could be assumed to include them, as the court did not interpret the context to indicate otherwise. Second, the RFRA did not explicitly exclude for-profit, secular businesses from consideration, and the court’s opinion indicated that Congress would have been capable of specifically excluding secular for-profits in the wording of the RFRA had it intended to do so.

Seemingly in response to this opinion, the Amicus Curiae brief filed close to 4 months later by the Constitutional Accountability Center addressed these arguments. It noted that the word “person” in the RFRA should necessarily have been taken to exclude for-profit businesses because of precedent set in the Braswell v. United States case, in which the 5th Amendment right to not be compelled to self-incriminate did not extend to a business owner’s refusal to produce (incidentally incriminating) corporate records. Importantly, the brief notes from the Braswell opinion that those acting in an official capacity as agents of a corporation “cannot be said to be exercising their personal rights and duties, nor to be entitled to their purely personal privileges, [but instead] assume the rights, duties, and privileges of the artificial entity.”

Like the Third Circuit court, the CAC’s Amicus brief noted the complete absence of precedent for treatment of secular, for-profit businesses as capable of exercising religion. Most importantly, in terms of the context of “person” in the RFRA, “constitutional text and history, as well as settled law, give a special status to churches and other religious institutions [such that …] religious institutions receive many types of legal protections for religious exercise rightly considered inapplicable to business corporations.” This long history is implied to be sufficient to provide the context to the word “person” that the Tenth Circuit opinion stated was lacking in the RFRA.

It’s important to note that where the “religious institution” line is drawn in the sand is also in heavy dispute. An Amicus brief filed by The Association of Gospel Rescue Missions (AGRM) contests that “the Mandate unilaterally re-defined most religious employers to be non-religious employers [such that…only] churches, their integrated auxiliaries, conventions or associations of churches, or religious orders’ exclusively religious activities fall within the Mandate’s exemption.”

The brief filed by the CAC, however, notes that the separation of corporations into “ecclesiastical and lay” has been distinct since the founding era, with the former defined as “’those of which not only the members are spiritual persons, but of which the object of the institution is also spiritual.’” (from Stewart Kyd’s A Treatise on the Law of Corporations, 1793). For instance, business corporations (even those with institutionalized actions accordant with Christian principles) are not exempt from federal anti-discrimination laws, unlike religious institutions. Between this and the complete lack of legal precedent for businesses to be granted rights under the Free Exercise clause of the First Amendment, it seems that the ACA mandate does not in fact “unilaterally re-define” what a religious employer is.

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Businesses should not be expected to have to cover abortifacients.

This is perhaps the biggest misperception in this entire case. Allow me to set the record straight. This lawsuit does not involve abortifacients. None of the contraceptives in dispute can end an existing pregnancy.

The main issue at stake here is where Hobby Lobby’s business owners’ beliefs clash with existing medical definitions. Medically, a pregnancy is taken to extend from implantation to birth. Although difficult to determine, estimates of the number of embryos lost pre-implantation without contraception range from half to between 60%-80%. Contraceptives that prevent a fertilized egg from implanting are not, therefore, abortifacients, a term defined by drugs that can disrupt the uterine lining already containing a fertilized embryo. None of the contraceptives at dispute in this lawsuit are capable of this.  A major problem in the depiction of this case in the media is the conflation of the Greens’ beliefs about when pregnancy begins with when pregnancy actually begins.

This is a problem that extends even to the case’s legal treatment. While the Brief for Respondents is sometimes careful to differentiate between abortion and “what [the Greens] believe to be an abortion,” both it and the brief filed by the AGRM inaccurately label the contraceptives as abortifacients multiple times. Unfortunately, whether something is an abortifacient or not is not an opinion, but a medical fact. Labeling contraceptives as abortifacients in court proceedings inappropriately extends a religious belief to a redefinition of a medical term, and in the process fuels politically and emotionally charged misconceptions surrounding this case.

However, even by the Greens’ incorrect definition of what they feel to be abortifacients, only one of the two forms of IUD they oppose covering can even prevent implantation. Emergency contraceptives (as well as the levonorgestrel-releasing IUD), which the company also opposes covering, cannot prevent implantation. The FDA’s product label for emergency contraception (used by Hobby Lobby’s defense to justify their opposition to covering it) was approved in—and has not been updated since—1999, and included a list of possible mechanisms by which the contraception was thought to work before it was fully investigated. Since then, however, strong and repeated evidence has shown that emergency contraception only works by preventing ovulation; for already-fertilized eggs, it has no effect whatsoever.

The evidence is so strong, in fact, that the International Federation of Gynecology and Obstetrics has issued the definitive statement that Plan B’s active ingredient (levonorgestrel, or LN)”do[es] not inhibit implantation.” The other form of emergency contraception (commonly known as Ella), which uses ulipristal acetate rather than LN as an active ingredient, also cannot prevent implantation.

Likewise, the hormonal LN-IUD cannot prevent or disrupt implantation, but rather prevents sperm from reaching eggs and may also inhibit ovulation.  Even the copper IUD does not work primarily by preventing implantation; its primary mechanism is spermicidal. However, some evidence does suggest it can prevent implantation when inserted as a form of emergency contraception.

While the argument over whether emergency contraception and IUDs are “abortifacients” is irrelevant to other challenges to the birth control mandate by businesses which oppose coverage of all forms of birth control, it’s important to note that Hobby Lobby’s arguments aren’t even factually based. They are so wrong, in fact, that three of the four types of contraceptives Hobby Lobby opposes covering don’t even work in a way that could even justify its objection! Essentially, Hobby Lobby’s opposition to covering emergency contraception relies on both the belief that pregnancy occurs prior to the medical definition of the beginning of pregnancy, and that emergency contraception and the LN-IUD work in a way they don’t actually work.

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Hobby Lobby’s owners would not be preventing employees from getting birth control. They merely wouldn’t cover them under the group plan.

Hobby Lobby supporters point out that employees can obtain birth control on their own, outside the company health plan. They argue that by not providing birth control, the Greens are remaining true to their religious precepts without actually invading their employees’ reproductive freedom. This argument is disingenuous because it incorrectly implies the Green family’s lack of involvement in their employees’ birth control decisions. Far from being the case, explicitly excluding a form of birth control from insurance coverage places the onus of affording it onto employees. Where such excluded birth control is prohibitively expensive for an employee, the company has effectively prohibited the employee from procuring the birth control, not the precise opposite. Lack of “cash on hand” combined with the urgency of procurement may easily limit employee access to OTC Plan B One-Step (average cost is close to $50); exorbitant upfront costs may do the same for IUDs (which cost from around $500 to over $1,000).

Which brings me to…

Hobby Lobby isn’t excluding all forms of birth control. Employees could get a different type of birth control under the group plan still.

This last argument ignores two very important points.

First, the forms of birth control Hobby Lobby would specifically exclude from coverage are two of the most crucial to prevent unwanted pregnancies (and therefore—ironically—abortions).

A 2012 study published in the New England Journal of Medicine, which followed 7,486 women over three years, found that the IUD (along with implants and hormone injections) is twenty times more effective than more popular short-term birth control methods such as the Pill, patch, and vaginal ring because it eliminates human error. Emergency contraception, on the other hand, prevents pregnancy after birth control failure or unprotected sex.

Removing a birth control method from coverage that is massively more effective than the most common method used is extremely counterproductive of the Greens if their stated intent is to reduce abortions. So is removing the only birth control method that may be used after unprotected sex or birth control failure.

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Secondly, and more importantly, as the Amicus brief by the AJC notes, if the courts rule with finality that a corporation has rights under the Free Exercise clause, it would either create a precedent that would allow religious objections by corporations to any extent under the mandate (even beyond these two forms of birth control, or, indeed, beyond birth control whatsoever), or put the justice system in the awkward position of appearing to favor one religion over another (e.g. Protestantism, which opposes emergency contraception as the Greens do, over Catholicism, which opposes all contraceptives and sterilization procedures).

In the former case, a decision that corporations can exercise religion would create precedent for Jehovah’s Witness business owners to refuse to cover blood transfusions or hematopoietic stem cell transplants, for Christian Scientist business owners to refuse to cover any healthcare, for Scientologist business owners to refuse to cover medication or therapy used to treat psychological illnesses, etc.

When I have brought up this point before, the most common argument I have encountered can be paraphrased by: “It’s different. Medicine that has to do with the beginning of life, especially that terminating life, is very different from life-saving medical treatments.” Again, this argument inaccurately conflates beliefs about how these forms of contraception work with how they actually work, as they are not abortifacients.

But far more importantly, it loses sight of the fact that it is only the purview of the justice system to determine whether a corporation has religious rights under the Free Exercise clause, not to make ethical judgments about the relative morality of the decisions it would make if it did. In fact, if businesses have a right to freely exercise religion, then preventing business owners of other faiths than the Greens from refusing to cover other forms of medical treatment they disapprove of for religious reasons (including any treatments that have nothing to do with birth control), would actually directly infringe on their rights.

It seems that the support of people who think the Greens should be able to refuse birth control coverage for religious reasons only extends to coverage exemptions their views just happen to agree with. But extend the religious right of businesses to refuse coverage for treatments most people don’t oppose (like, say, blood transfusions) and suddenly many Hobby Lobby supporters are going to be much less enthusiastic about the consequences of this case, if Hobby Lobby wins it.

 

Misunderstanding abounds in the discussion of the Hobby Lobby v Sebelius case. While Hobby Lobby supporters have portrayed the challenge to the birth control mandate as a crusade for individual religious rights, they ignore the complete lack of precedent for granting secular businesses religious rights as well as the precedent treating people acting as corporate agents differently than as individuals.  When they appeal to the emotions of people who oppose abortion by re-defining Plan B and IUDs as “abortifacients,” they demonstrate that they feel their beliefs trump facts. And when they claim that refusing to cover birth control is somehow “different” than refusing to cover any other medical treatment for religious reasons, they appear unaware of the actual implications of this case. A judgment in favor of Hobby Lobby would set a very dangerous precedent: it would empower corporations to mandate their beliefs, while simultaneously ruling that those beliefs trump medical facts, even when used to make decisions about medical coverage.

 

Sources:

1) The FreedomOutpost article “Hobby Lobby Case against Obamacare is About Rights, not Contraceptives.” http://freedomoutpost.com/2013/12/hobby-lobby-case-obamacare-rights-contraceptives/

2) SCOTUSblog, Sebelius v. Hobby Lobby Stores, Inc. http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/

3) Amicus Curiae brief on behalf of the Constitutional Accountability Center: http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/13-354-Amicus-OK-TO-PRINT.pdf

4) Amicus Curiae brief on behalf of 11 professional medical organizations including ACOG, Physicians for Reproductive Health, and the American Medical Women’s Association: http://sblog.s3.amazonaws.com/wp-content/uploads/2013/10/13-354-BRIEF-OF-AMICI-CURIAE-PHYSICIANS-FOR-REPRODUCTIVE-HEALTH-et-al….pdf

5) Amicus Curiae brief of the American Jewish Committee: http://sblog.s3.amazonaws.com/wp-content/uploads/2013/11/13-354-13-356-Brief-of-Amicus-Curiae-American-Jewish-Committee.pdf

6) Third Circuit opinion on the Conestoga v Sebelius case: http://www2.ca3.uscourts.gov/opinarch/131144p.pdf 

7) Sixth Circuit opinion on the Autocam Corp. v Sebelius case: http://www.ca6.uscourts.gov/opinions.pdf/13a0278p-06.pdf

8) Tenth Circuit opinion on Hobby Lobby v. Sebelius:  http://www.ca10.uscourts.gov/opinions/12/12-6294.pdf 

9) “The Good Egg,” a 2004 Discover article on the beginning of pregnancy: http://discovermagazine.com/2004/may/cover#.UrSsaGiARUQ

10) Durand, et al. “On the mechnaisms of action of short-term levonorgestrel administration in emergency contraception.” http://www.ncbi.nlm.nih.gov/pubmed/11747872

11) International Federation of Gynecology and Obstetrics Statement on Mechanism of Action of LN-EC: http://www.cngof.asso.fr/D_TELE/081022FIGO.pdf

12) “What Birth Control Works Best? (Hint: It’s Not The Pill)” http://healthland.time.com/2012/05/24/iuds-and-implants-beat-the-pill-in-preventing-pregnancy/

13) Winner, et al. “Effectiveness of Long-Acting Reversible Contraception,” New England Journal of Medicine. http://www.nejm.org/doi/full/10.1056/NEJMoa1110855

14) On the Religious Freedom Restoration Act of 1993: http://www.justice.gov/jmd/ls/legislative_histories/pl103-141/pl103-141.html

15) Human Reproduction Update, “Intrauterine devices and intrauterine systems” http://humupd.oxfordjournals.org/content/14/3/197.abstract 

16) First National Bank of Boston v. Bellotti: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=435&invol=765

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