read instructions carefully
Nothing has been as politically contentious as the Affordable Care Act of 2010, aka “Obamacare”. Opposition to the law has taken many forms but, as in other political disputes, the courts are a critical arena for these battles.
The first reading here is an example of a “syllabus” of a case, the summary of the case by the Court Reporter, a private entity who keeps the official record of the Supreme Court decisions.
Below the syllabus of the Sebelius(2012) case there is a brief article discussing the case of King v. Burwell. The final decision in this case upheld a key provision of the ACA. The Supreme Court held that citizens in state that had not created their own exchanges were still eligible for federal subsidies. This means that the key element of the ACA that enabled people to get more affordable access to health insurance by using the subsidies to buy insurance on state health insurance exchanges.
Finally, there is a third reading regarding the case Burwell v Hobby Lobby Stores, Inc (2014), which looks at the decision by the Supreme Court to allow that corporation to not follow the ACA requirement that health packages include contraceptive coverage due to the owners’ religious beliefs.
Syllabus
NATIONAL FEDERATION OF INDEPENDENT BUSINESS et al. v. SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, et al.
certiorari to the united states court of appeals for the eleventh circuit
No. 11–393. Argued March 26, 27, 28, 2012—Decided June 28, 20121
In 2010, Congress enacted the Patient Protection and Affordable Care Act in order to increase the number of Americans covered by health insurance and decrease the cost of health care. One key provision is the individual mandate, which requires most Americans to maintain “minimum essential” health insurance coverage. 26 U. S. C. §5000A. For individuals who are not exempt, and who do not receive health insurance through an employer or government program, the means of satisfying the requirement is to purchase insurance from a private company. Beginning in 2014, those who do not comply with the mandate must make a “[s]hared responsibility payment” to the Federal Government. §5000A(b)(1). The Act provides that this “penalty” will be paid to the Internal Revenue Service with an individual’s taxes, and “shall be assessed and collected in the same manner” as tax penalties. §§5000A(c), (g)(1).
Another key provision of the Act is the Medicaid expansion. The current Medicaid program offers federal funding to States to assist pregnant women, children, needy families, the blind, the elderly, and the disabled in obtaining medical care. 42 U. S. C. §1396d(a). The Affordable Care Act expands the scope of the Medicaid program and increases the number of individuals the States must cover. For example, the Act requires state programs to provide Medicaid coverage by 2014 to adults with incomes up to 133 percent of the federal poverty level, whereas many States now cover adults with children only if their income is considerably lower, and do not cover childless adults at all. §1396a(a)(10)(A)(i)(VIII). The Act increases federal funding to cover the States’ costs in expanding Medicaid coverage. §1396d(y)(1). But if a State does not comply with the Act’s new coverage requirements, it may lose not only the federal funding for those requirements, but all of its federal Medicaid funds. §1396c.
Twenty-six States, several individuals, and the National Federation of Independent Business brought suit in Federal District Court, challenging the constitutionality of the individual mandate and the Medicaid expansion. The Court of Appeals for the Eleventh Circuit upheld the Medicaid expansion as a valid exercise of Congress’s spending power, but concluded that Congress lacked authority to enact the individual mandate. Finding the mandate severable from the Act’s other provisions, the Eleventh Circuit left the rest of the Act intact.
Held: The judgment is affirmed in part and reversed in part.
648 F. 3d 1235, affirmed in part and reversed in part.
1. Chief Justice Roberts delivered the opinion of the Court with respect to Part II, concluding that the Anti-Injunction Act does not bar this suit.
The Anti-Injunction Act provides that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person,” 26 U. S. C. §7421(a), so that those subject to a tax must first pay it and then sue for a refund. The present challenge seeks to restrain the collection of the shared responsibility payment from those who do not comply with the individual mandate. But Congress did not intend the payment to be treated as a “tax” for purposes of the Anti-Injunction Act. The Affordable Care Act describes the payment as a “penalty,” not a “tax.” That label cannot control whether the payment is a tax for purposes of the Constitution, but it does determine the application of the Anti-Injunction Act. The Anti-Injunction Act therefore does not bar this suit. Pp. 11–15.
2. Chief Justice Roberts concluded in Part III–A that the individual mandate is not a valid exercise of Congress’s power under the Commerce Clause and the Necessary and Proper Clause. Pp. 16–30.
(a) The Constitution grants Congress the power to “regulate Commerce.” Art. I, §8, cl. 3 (emphasis added). The power to regulate commerce presupposes the existence of commercial activity to be regulated. This Court’s precedent reflects this understanding: As expansive as this Court’s cases construing the scope of the commerce power have been, they uniformly describe the power as reaching “activity.” E.g., United States v. Lopez, 514 U. S. 549. The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce.
Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority. Congress already possesses expansive power to regulate what people do. Upholding the Affordable Care Act under the Commerce Clause would give Congress the same license to regulate what people do not do. The Framers knew the difference between doing something and doing nothing. They gave Congress the power to regulate commerce, not to compel it. Ignoring that distinction would undermine the principle that the Federal Government is a government of limited and enumerated powers. The individual mandate thus cannot be sustained under Congress’s power to “regulate Commerce.” Pp. 16–27.
(b) Nor can the individual mandate be sustained under the Necessary and Proper Clause as an integral part of the Affordable Care Act’s other reforms. Each of this Court’s prior cases upholding laws under that Clause involved exercises of authority derivative of, and in service to, a granted power. E.g., United States v. Comstock, 560 U. S. ___. The individual mandate, by contrast, vests Congress with the extraordinary ability to create the necessary predicate to the exercise of an enumerated power and draw within its regulatory scope those who would otherwise be outside of it. Even if the individual mandate is “necessary” to the Affordable Care Act’s other reforms, such an expansion of federal power is not a “proper” means for making those reforms effective. Pp. 27–30.
3. Chief Justice Roberts concluded in Part III–B that the individual mandate must be construed as imposing a tax on those who do not have health insurance, if such a construction is reasonable.
The most straightforward reading of the individual mandate is that it commands individuals to purchase insurance. But, for the reasons explained, the Commerce Clause does not give Congress that power. It is therefore necessary to turn to the Government’s alternative argument: that the mandate may be upheld as within Congress’s power to “lay and collect Taxes.” Art. I, §8, cl. 1. In pressing its taxing power argument, the Government asks the Court to view the mandate as imposing a tax on those who do not buy that product. Because “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,” Hooper v. California, 155 U. S. 648, the question is whether it is “fairly possible” to interpret the mandate as imposing such a tax, Crowell v. Benson, 285 U. S. 22. Pp. 31–32.
4. Chief Justice Roberts delivered the opinion of the Court with respect to Part III–C, concluding that the individual mandate may be upheld as within Congress’s power under the Taxing Clause. Pp. 33–44.
(a) The Affordable Care Act describes the “[s]hared responsibility payment” as a “penalty,” not a “tax.” That label is fatal to the application of the Anti-Injunction Act. It does not, however, control whether an exaction is within Congress’s power to tax. In answering that constitutional question, this Court follows a functional approach, “[d]isregarding the designation of the exaction, and viewing its substance and application.” United States v. Constantine, 296 U. S. 287. Pp. 33–35.
(b) Such an analysis suggests that the shared responsibility payment may for constitutional purposes be considered a tax. The payment is not so high that there is really no choice but to buy health insurance; the payment is not limited to willful violations, as penalties for unlawful acts often are; and the payment is collected solely by the IRS through the normal means of taxation. Cf. Bailey v. Drexel Furniture Co., 259 U. S. 20–37. None of this is to say that payment is not intended to induce the purchase of health insurance. But the mandate need not be read to declare that failing to do so is unlawful. Neither the Affordable Care Act nor any other law attaches negative legal consequences to not buying health insurance, beyond requiring a payment to the IRS. And Congress’s choice of language—stating that individuals “shall” obtain insurance or pay a “penalty”—does not require reading §5000A as punishing unlawful conduct. It may also be read as imposing a tax on those who go without insurance. See New York v. United States, 505 U. S. 144–174. Pp. 35–40.
(c) Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” Art. I, §9, cl. 4. A tax on going without health insurance is not like a capitation or other direct tax under this Court’s precedents. It therefore need not be apportioned so that each State pays in proportion to its population. Pp. 40–41.
5. Chief Justice Roberts, joined by Justice Breyer and Justice Kagan, concluded in Part IV that the Medicaid expansion violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 45–58.
(a) The Spending Clause grants Congress the power “to pay the Debts and provide for the . . . general Welfare of the United States.” Art. I, §8, cl. 1. Congress may use this power to establish cooperative state-federal Spending Clause programs. The legitimacy of Spending Clause legislation, however, depends on whether a State voluntarily and knowingly accepts the terms of such programs. Pennhurst State School and Hospital v. Halderman, 451 U. S. 1. “[T]he Constitution simply does not give Congress the authority to require the States to regulate.” New York v. United States, 505 U. S. 144. When Congress threatens to terminate other grants as a means of pressuring the States to accept a Spending Clause program, the legislation runs counter to this Nation’s system of federalism. Cf. South Dakota v. Dole, 483 U. S. 203. Pp. 45–51.
(b) Section 1396c gives the Secretary of Health and Human Services the authority to penalize States that choose not to participate in the Medicaid expansion by taking away their existing Medicaid funding. 42 U. S. C. §1396c. The threatened loss of over 10 percent of a State’s overall budget is economic dragooning that leaves the States with no real option but to acquiesce in the Medicaid expansion. The Government claims that the expansion is properly viewed as only a modification of the existing program, and that this modification is permissible because Congress reserved the “right to alter, amend, or repeal any provision” of Medicaid. §1304. But the expansion accomplishes a shift in kind, not merely degree. The original program was designed to cover medical services for particular categories of vulnerable individuals. Under the Affordable Care Act, Medicaid is transformed into a program to meet the health care needs of the entire nonelderly population with income below 133 percent of the poverty level. A State could hardly anticipate that Congress’s reservation of the right to “alter” or “amend” the Medicaid program included the power to transform it so dramatically. The Medicaid expansion thus violates the Constitution by threatening States with the loss of their existing Medicaid funding if they decline to comply with the expansion. Pp. 51–55.
(c) The constitutional violation is fully remedied by precluding the Secretary from applying §1396c to withdraw existing Medicaid funds for failure to comply with the requirements set out in the expansion. See §1303. The other provisions of the Affordable Care Act are not affected. Congress would have wanted the rest of the Act to stand, had it known that States would have a genuine choice whether to participate in the Medicaid expansion. Pp. 55–58.
6. Justice Ginsburg, joined by Justice Sotomayor, is of the view that the Spending Clause does not preclude the Secretary from withholding Medicaid funds based on a State’s refusal to comply with the expanded Medicaid program. But given the majority view, she agrees with The Chief Justice’s conclusion in Part IV–B that the Medicaid Act’s severability clause, 42 U. S. C. §1303, determines the appropriate remedy. Because The Chief Justice finds the withholding—not the granting—of federal funds incompatible with the Spending Clause, Congress’ extension of Medicaid remains available to any State that affirms its willingness to participate. Even absent §1303’s command, the Court would have no warrant to invalidate the funding offered by the Medicaid expansion, and surely no basis to tear down the ACA in its entirety. When a court confronts an unconstitutional statute, its endeavor must be to conserve, not destroy, the legislation. See, e.g., Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S. 320–330. Pp. 60–61.
Roberts, C. J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, and III–C, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined; an opinion with respect to Part IV, in which Breyer and Kagan, JJ., joined; and an opinion with respect to Parts III–A, III–B, and III–D. Ginsburg, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Sotomayor, J., joined, and in which Breyer and Kagan, JJ., joined as to Parts I, II, III, and IV. Scalia, Kennedy, Thomas, and Alito, JJ., filed a dissenting opinion. Thomas, J., filed a dissenting opinion.
Walsh, Mark. “Although the ACA is 1,000 pages long, its future may depend on a single phrase. “ ABA Journal, (March 2015)
Supreme Court Report
The Affordable Care Act is some 1,000 pages long, and it survived largely intact in a 193-page 2012 U.S. Supreme Court decision that upheld President Barack Obama's signature health reform law as an exercise of Congress' taxing powers. Now, a mere eight words in the statute -- and one Internal Revenue Service regulation -- may threaten the future of the act.
The justices will hear arguments March 4 in King v. Burwell, a challenge to the IRS rules that extend subsidies to taxpayers in the 34 states that have refused to establish their own health insurance exchanges under the ACA and instead are relying on the federal marketplace. Because the complex law depends on three principles -- tax help for participants, shared responsibility (meaning the individual coverage mandate) and reforms of the insurance market -- to extend health coverage to more Americans, a decision that significantly hobbled one leg of that stool would undermine the entire law, observers believe.
The case "is the most existential threat to the viability of the Affordable Care Act in about three dozen states," says Ron Pollack, the executive director of Families USA, a Washington, D.C., group that lobbies on behalf of health care consumers and is a strong supporter of the ACA. "The stakes are very high."
Michael A. Carvin, the Jones Day lawyer who will argue on behalf of four Virginia residents behind the latest ACA challenge, says the case is "all about the rule of law." "Do you alter the law that was enacted to achieve a policy endorsed by the executive or judicial branches?" he asks. "No, you have to interpret the law as it is written, because we are a nation of laws -- not men."
The ACA authorizes federal tax-credit subsidies for health insurance that is purchased through -- as the eight key words seized on by the challengers put it -- an "exchange established by the state under Section 1311." That section provides carrots and sticks for the states to establish their own health care exchanges, or marketplaces. Another ACA provision, Section 1321, was a backup allowing the U.S. Department of Health and Human Services to establish a federal exchange for those states that failed to establish their own. That exchange was offered on the HealthCare.gov site.
Few people contemplated that antipathy toward the ACA would drive so many states to refuse to establish exchanges. "Congress did not expect the states to turn down federal funds and fail to create and run their own exchanges," one federal judge put it when the case was first decided Feb. 18, 2014. Amid that political landscape, the IRS in 2012 promulgated rules extending tax subsidies to income-qualified participants in states served by the federal exchange.
Some members of Congress questioned the interpretation, and two scholars, Jonathan H. Adler of Case Western Reserve University School of Law and Michael F. Cannon of the Cato Institute, published an influential law review article in 2013 that called the IRS rule illegal.
"The IRS … cited not legislative history or statutory authority for what it did," says Cannon, director of health policy studies at the libertarian D.C. think tank. "They knew the relevant language of the statute did not permit them to do what they wanted to do, but they did it anyway. They just rewrote the statute."
Several lawsuits were organized by groups opposed to the ACA. In King, four residents of Virginia -- which does not have its own exchange -- say they would be subject to the ACA's individual mandate to purchase insurance solely because of the IRS rule. Eligibility for a subsidy triggers the individual mandate for a range of low- and middle-income taxpayers who might otherwise be exempt because of their modest household incomes -- and thus not subject to a tax penalty for not purchasing insurance.
Both a federal district court and the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, upheld the IRS rule and the Obama administration's interpretation of the law. A panel of the appeals court ruled 3-0 on July 21 that the statute was "ambiguous and subject to multiple interpretations," and thus the agency's interpretation deserved deference.
Just hours earlier that day, a panel of the U.S. Court of Appeals for the District of Columbia Circuit had ruled 2-1 that the ACA "plainly makes subsidies available only on exchanges established by states."
A federal district court in Oklahoma, ruling in September in favor of that state's challenge to the IRS rule, criticized the Obama administration's defense of it as "lead[ing] us down a path toward Alice's Wonderland, where up is down and down is up, and words mean anything."
The high court stepped into Alice's rabbit hole and granted review of the Virginia case in November, casting off the Obama administration's plea that it should wait because the D.C. Circuit had granted en banc review of the case known as Halbig v. Burwell.
There was immediate speculation that the four conservative justices -- Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. -- who were in dissent in 2012 in National Federation of Independent Business v. Sebelius on the constitutionality of the individual mandate, were seeing the Virginia case as a fresh opportunity to gut the ACA. That is, if they could persuade Chief Justice John G. Roberts Jr., who wrote the majority opinion in NFIB, to come back to the conservative fold.
The challengers' reading of the ACA rests on an out-of-context "misreading of a single phrase" and "would thwart the act's core reforms in the 34 states that exercised their statutory prerogative to allow HHS to establish exchanges for them," U.S. Solicitor General Donald B. Verrilli Jr. said in a brief. "Those states would face the very death spirals the act was structured to avoid, and insurance coverage for millions of their residents would be extinguished."
Verrilli maintained the law was designed on the idea that tax subsidies are available to participants in every state. "The act was debated, evaluated and passed under the universal understanding that tax credits would be available in every state -- including states with federally facilitated exchanges," he wrote.
Jane Perkins, the legal director of the National Health Law Program, a Washington, D.C., group that backs the ACA, says the justices shouldn't focus on the key eight words of the statute cited by the challengers.
"As a lawyer who has often applied principles of statutory construction, I don't think you can isolate these words the way the plaintiffs have," she says.
Supporters of the law warn that a decision against the IRS rule would have serious repercussions for the viability of the law. The D.C.-based Urban Institute predicted in a January report that the elimination of premium tax credits in the states without their own exchanges would increase the number of uninsured Americans by 8.2 million and deplete insurance markets not tied to group plans.
Perkins says that among the practical problems would be that federal funding for creating such exchanges has been used up, and that some states have passed laws prohibiting the establishment of their own exchanges. "They can't turn around a barge on a dime," she says.
The Cato Institute's Cannon argues that the King case does not challenge the ACA itself -- only what he and others view as an unlawful use of regulatory power to expand the law. And any removal of individuals from health insurance rolls would not be the fault of the lawsuit. "It is not the job of the Supreme Court to look beyond the statute to its effects," he says. "That is the job of Congress."
But Pollack of Families USA, a former dean of Antioch School of Law (now the David A. Clarke School of Law at the University of the District of Columbia), notes that House Republicans have repeatedly tried to overturn the ACA, and that Republicans took over the Senate this year.
"If the King case comes down adversely [to the ACA and its supporters]," he says, "opponents in Congress will have significant leverage" over the law.
This article originally appeared in the March 2015 issue of the ABA Journal with this headline: "8 Words May Make a Law: Although the ACA is 1,000 pages long, its future may depend on a single phrase."
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By Mark Walsh
Gostin, Lawrence. Viewpoint | August 27, 2014
“The ACA’s Contraceptive MandateReligious Freedom, Women’s Health, and Corporate Personhood.” Journal of the American Medical Association (JAMA)
2014;312(8):785-786.
The Supreme Court on June 30, 2014, decided Burwell v Hobby Lobby Stores, Inc—a deeply divisive case. Holding that the federal government cannot lawfully mandate “closely held” for-profit corporations to provide contraceptive coverage, the Court split 5-4 along ideological lines.1 The Court thus entered a political quagmire at the intersection of religious freedom, women’s health, and corporate personhood.
The Affordable Care Act of 2010 (ACA) requires specified employer group health plans to cover preventive care and screenings for women without cost-sharing. Department of Health and Human Services (HHS) rules mandate coverage of 20 Food and Drug Administration–approved contraceptive methods. However, HHS exempts religious employers (eg, churches) but not for-profit organizations. HHS offers religious nonprofits an “accommodation,” whereby insurance companies exclude contraception coverage from the employer’s plan, but the insurance companies must provide separate coverage without cost-sharing to the employer, its health plan, or women.
In the Hobby Lobby case, 3 closely held for-profit corporations holding Christian beliefs that life begins at conception challenged the mandate of 4 contraception methods they believe prevent a fertilized egg from attaching to the uterus, tantamount to an abortion. These 4 methods include 2 forms of emergency contraceptive pill, which can be taken within 3 to 5 days after sex, and intrauterine devices (IUDs), which are inserted into the uterus to prevent pregnancy. The latter are long-acting, reversible, and highly effective forms of contraceptive but can also be used for emergency contraception.
The Religious Freedom Restoration Act of 1993 (RFRA) prohibits government from “substantially” burdening a person’s “exercise of religion” without a “compelling interest” and requires the “least restrictive” means to achieve that interest. Holding that HHS violated RFRA, the Court first found that RFRA applies to closely held for-profit corporations. The Court reasoned that corporations are “persons” capable of “exercising religious freedom.” Justice Alito, writing for the Court, said RFRA protects individuals—the company’s shareholders, officers, and employees.
Having found that RFRA applies to corporations, the Court said the contraception mandate “substantially” burdens their religious freedoms. The mandate, according to Justice Alito, coerces companies to fund services to which they are morally opposed. The Court assumed the government had a “compelling interest” in ensuring reproductive services but said HHS could achieve its purpose less restrictively. The federal government, for example, could directly fund the 4 contraceptive methods or use the same “accommodation” HHS offered to nonprofit religious organizations, namely requiring insurers to cover those services.
WOMEN’S HEALTH, WELL-BEING, AND EQUAL RIGHTS
The Court’s 49-page opinion is solicitous of corporate rights and religious freedoms while mentioning women only 13 times. In stark contrast, Justice Ruth Ginsburg’s dissent symbolically quotes Sandra Day O’Connor, the Court’s first female justice: “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”2 Justice Ginsburg’s passionate dissent reveals the virtually unbridgeable fissure among the Justices, reflected in US politics and culture.
Reproductive services are vital to women’s health and lives,3 expanding their social and economic opportunities. Reproductive services reduce unintended pregnancies and facilitate treatment, with 99% of all sexually active women using birth control at some point.4 Poor women, moreover, are unlikely to afford reproductive services, especially long-acting contraception with high initial costs. Justice Ginsburg wrote, “the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage,” and “almost one-third of women would change their contraceptive method if costs were not a factor.” Reproductive freedoms, of course, are also vital to families and society given the high social costs of unplanned pregnancies.
A CLASH BETWEEN RELIGIOUS FREEDOM AND WOMEN’S RIGHTS
The Court assumed the contraception mandate created a “substantial burden,” deferring to the companies’ subjective beliefs, which are unfounded in fact. The 4 contraceptive methods to which they objected avert pregnancy by delaying or preventing ovulation. Scientific evidence does not support the claim that emergency contraception works by preventing implantation.5 The corporate owners remained free to practice their religion and speak out against contraception. They would play no part in the decision to use contraception, which is solely a matter for the woman and her physician. The companies, moreover, could have avoided any moral dilemma by paying a tax instead of providing insurance, with employees then eligible to secure full coverage on the insurance exchange.
The exercise of religious liberty imposes a burden on the rights and health of female employees, who may not share their employer’s beliefs. If family planning services became unaffordable, the reproductive autonomy and well-being of women would be placed at risk. At the same time, the company effectively would be treating female employees unequally, as there would be no comparable coverage exclusions for men.
CORPORATE PERSONHOOD
Hobby Lobby equates corporations with “persons” capable of practicing religion, but corporate personhood is a legal fiction. A corporation is simply a business entity created by law, which affords owners and shareholders advantages, such as limited liability. The corporation’s prime purpose is to make a profit, not to exercise human freedoms. In exchange for the advantages received, there is good reason to require corporations to abide by laws of general applicability, such as administering government benefit schemes and not discriminating.
The Court’s ruling is limited to “closely held” corporations, but it never defines that term. Justice Alito equates “closely held” with family-owned businesses. Yet 90% of corporations are closely held, some of which are large: for example, Hobby Lobby has 13 000 employees.6 Justice Alito asserts that publicly traded companies would not make RFRA claims but, if they did, the Court’s reasoning appears to apply to them. In fact, the Court has conferred rights on multinational corporations in multiple realms—defending commercial speech and campaign financing. The trend toward corporate personhood has constrained public health regulation, ranging from advertising prescription medicines to marketing junk food, tobacco, and alcohol.7 The Court has stressed corporate rights, often to the detriment of individuals.
Religious beliefs, moreover, extend beyond abortion—for example, opposing vaccinations, blood transfusions, or psychotropic drugs or objecting to providing health care coverage to same-sex spouses. Justice Alito asserted that Hobby Lobby does not apply to these medical services and would not undermine civil rights laws but never explained why. The Court’s reasoning could extend to multiple realms of medical practice, leading Justice Ginsburg to call Hobby Lobby “a decision of startling breadth.”
OPENING THE FLOODGATES OF ACA LITIGATION
If a Supreme Court decision is supposed to give a measure of legal certainty, Hobby Lobby does anything but that. Currently some 50 cases are pending in the courts, and the Court’s decision leaves considerable ambiguity: do large corporations have religious freedoms, is HHS’ accommodation acceptable, and does the decision apply to medical services beyond contraception?
In Hobby Lobby, the court endorsed an “accommodation,” or legal exception to the rule, requiring an employer merely to sign an insurance form stating it is a nonprofit religious organization that objects to contraception. The day after the case came down, the Court issued a temporary emergency injunction against enforcement of this accommodation—provoking a stinging rebuke from all 3 female justices.8 “Those who are bound by our decisions usually believe they can take us at our word,” Justice Sotomayor wrote. “Not so today.” Wheaton, a Christian college, argued, “signing the form would impermissibly facilitate abortions and is therefore forbidden.” (The Court issued a similar order in favor of Little Sisters of the Poor, an order of Roman Catholic nuns, in January.) “The Court,” said Sotomayor, ignores a simple truth: “The government must be allowed to handle the basic tasks of public administration in a manner that comports with common sense.”
Hobby Lobby does not undermine the core components of the ACA such as affordable access to services. The decision, however, does potentially affect women’s reproductive health and could signal a “chipping away” at the margins of this historic health care entitlement. Beyond the ACA, the case solidifies a growing trend in Supreme Court jurisprudence defending corporate personhood, which is becoming a major impediment to public health regulation.
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