Can businesses claim religious freedom?

By the time you read this, the United States Supreme Court will have heard argument in the companion cases of Kathleen Sebelius, Secretary of HHS, v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. v. Sebelius. The cases raise the important question whether closely-held family-run businesses can claim religious freedom from the requirement imposed by the government under Obamacare that employers provide free contraceptive coverage for drugs that can cause abortion. The one-hour argument was on Tuesday, March 25, but a decision from the Supreme Court is not expected much before its current term ends in late June.

With the help of some law students, I filed an amicus brief on behalf of a number of not-for-profits, like Massachusetts Citizens for Life and Massachusetts Family Institute, arguing from our legal history and tradition that secular corporate charters have often been the vehicle for the practice of religion unhindered by government control. I summarized the argument in an op-ed published in the Sunday Globe for March 2 under the heading, "Our legal heritage favors religious freedom."

For example, it is telling that Roger Williams, who favored a broad understanding of religious freedom, received a charter for Rhode Island which stated: "No person within the said colony, at any time hereafter, shall be in any wise molested, punished, disquieted or called in question, for any difference in opinion in matters of religion ... but that all ... freely and fully have and enjoy his and their own judgments and consciences in matters of religious concernments." In 1658, the General Assembly reinforced the validity of the charter, reminding the other colonies that: "Freedom of different consciences, to be protected from enforcements, was the principal ground of our Charter...; which freedom we still prize as the greatest happiness that men can possess in this world."

The technical legal question before the Supreme Court is whether business corporations are persons within the meaning of the Religious Freedom Restoration Act, a federal law that applies to all persons, but doesn't expressly define "person." Of course the federal Dictionary Act would presumably kick in, which does consider corporations to be legal persons, a longstanding legal fiction that dates back to the middle ages and even before, and is included in Blackstone's Commentaries on the Laws of England, written just before American independence.

If a person's religious practice is substantially burdened by government, then the burden falls on the government to demonstrate both that its interest is of a convincing, compelling nature, and that the restriction on religious freedom is no broader than necessary to achieve that compelling government interest.

In response to my piece in the Globe, several letters to the editor were published on the following Sunday, March 9, all making arguments against the position of the corporations, and in favor of the government mandate. For example, a "reproductive health advocacy fellow with Physicians for Reproductive Health," writes, "As a physician specializing in family planning, I am outraged when I see news outlets publishing misinformation about contraception." The good doctor categorically states, "No method of birth control causes abortion." The issue, then, is whether any of the forms of contraception can cause abortion.

Well, the doctor reports that "contraception, including emergency contraceptive pills such as Plan B and Ella, work primarily before fertilization occurs. They do not work post-implantation and do not disrupt an established pregnancy." Notice the words "primarily" and "post-implantation." They are a tacit admission by the letter-writer that the emergency contraceptives secondarily work after fertilization to prevent implantation of the fertilized embryo in the womb. Without double-speak, that is an abortion. Which is the issue for the Greens, the owners and directors of Hobby Lobby, and what they object to, since they do not object to other forms of contraception that do not have an abortifacient feature. QED. So some forms of contraception can cause abortion. The fact that this happens to outrage the "reproductive health advocate" is just a perk.

The other letters both raise in different ways the claim that the relevant religious freedom at issue here is that of the employee, not the employer. But the regulations under Obamacare are not requiring employees to use or refrain from using contraceptives that can cause abortion. They can do whatever their religion, conscience, or freedom permits. But the contraceptive mandate is requiring employers to provide abortifacient contraceptives free-of-charge, and thus to cooperate in doing what they regard to be religiously prohibited. And so the relevant religious freedom in these cases is that of the employer, not the employee. From the employers' perspective, if it's your body and your choice, why should I have to pay for it if it runs the risk of killing a human embryo?

Dwight G. Duncan is professor at UMass School of Law Dartmouth. He holds degrees in both civil and canon law.

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