For-Profit Corporations, Free Exercise, and the HHS Mandate by Scott Gaylord :: SSRN

Under the Patient Protection and Affordable Care Act, most employers must provide their employees with health insurance that covers all FDA approved contraceptive methods and sterilization procedures (the “HHS mandate”). Across the country, individuals, religious schools, and corporations have sued to enjoin the mandate, arguing, among other things, that it violates the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (“RFRA”). Federal district courts have reached conflicting decisions in the 15 cases decided to date, leaving the Third, Fourth, Sixth, Seventh, Eighth, Tenth, and D.C. Circuits to sort out the complex relationship between the free exercise clause and laws, such as the HHS mandate, that are alleged to be neutral and generally applicable. But these cases are made even more difficult because of a specific claim that is raised in each case — that corporations can exercise religion under the First Amendment and RFRA. As several district courts have noted, “whether secular corporations can exercise religion is an open question.” This paper analyzes this novel and unresolved issue, arguing that, just as corporations can engage in free speech under Citizens United, for-profit corporations can exercise religion under the free exercise clause and RFRA.

Although the Supreme Court has not addressed this specific issue, I argue that it has established rules for determining whether corporations can invoke particular constitutional rights and that, under these rules, corporations can invoke the protection of the free exercise clause. Several district courts have reached the opposite conclusion, while several others have avoided the issue altogether. Relying primarily on a single footnote in First Nat’l Bank of Boston v. Bellotti, the courts denying free exercise protection to for-profit corporations maintain that the free exercise of religion is a “purely personal” right that is limited to individuals and religious non-profit organizations. This paper contends, however, that a more detailed review of Bellotti, Citizens United, and the Court’s other decisions regarding the constitutional rights of corporations reveals that free exercise, like the freedom of speech, is not a “purely personal” right. Consequently, corporations — whether for-profit or non-profit — can claim its protection. Moreover, in the wake of Bellotti and Citizens United, neither the “profit motive” of a for-profit corporation nor the “religious nature” of religious organizations (e.g., churches) justifies limiting the free exercise clause only to individuals and non-profit religious organizations. Although many (perhaps most) corporations may choose not to engage in religious activities, there is no constitutional basis for precluding a priori all for-profit businesses from raising free exercise claims.

via For-Profit Corporations, Free Exercise, and the HHS Mandate by Scott Gaylord :: SSRN.

The Affordable Care Act and Reproductive Health: Potential Gains and Serious Challenges

After nearly a century of failed or incomplete legislative efforts, the Patient Protection and Affordable Care Act (PPACA), enacted by Congress in March 2010, establishes the principle that every American is entitled to affordable and effective health insurance coverage regardless of income or health status. Although many aspects of the act have received broad attention, its impact on reproductive health has received considerably less scrutiny, except when debated through the specific lens of particularly polarized ideological concerns. If fully implemented as planned, the PPACA has the potential to improve reproductive health in the United States in at least three ways: increasing the number of women and men with insurance coverage; increasing the value of insurance coverage for addressing reproductive health needs; and improving access to reproductive health services and information more generally. Several PPACA provisions stand out as having particular importance for reproductive health, including Medicaid family planning expansions, standards for an essential health benefits package, expanded coverage for contraception and other clinical preventive services, and teen pregnancy prevention programs. All these potential gains, however, are threatened by political, economic, and logistical challenges to the PPACA and by flaws in the legislation itself.

via The Affordable Care Act and Reproductive Health: Potential Gains and Serious Challenges.

Wearing the Crown of Solomon? Chief Justice Roberts and the Affordable Care Act “Tax”

Attempting to play the role of King Solomon in his PPACA decision, Chief Justice John Roberts split the baby perversely by ruling it was not a tax under the Anti-Injunction Act, which would have likely deprived the Court of jurisdiction to hear this pre-enforcement challenge to the individual mandate, but it was a tax for taxing and spending purposes even though Congress said it was a “penalty” and not a tax. And the Chief Justice had to twist further his “wisdom” to hold that it was not an unconstitutional direct tax, even though that is exactly what it is, if it is a tax in the first instance.

via Wearing the Crown of Solomon? Chief Justice Roberts and the Affordable Care Act “Tax”.

“Our Federalism” Moves Indoors

A great deal of the US Supreme Court’s federalism jurisprudence over the past two decades has focused on the outer limits of federal power, suggesting a mutually exclusive division of jurisdiction between the states and the federal government, where subjects are regulated by one sovereign or the other but not both. This is not an accurate picture of American governance as it has operated over the past half century — most important areas of American life are regulated concurrently by both the federal government and the states. The Supreme Court’s June 2012 decision clearing the way for the Patient Protection and Affordable Care Act (PPACA) to move forward thus should not be regarded as an affront to state sovereignty but as a realistic embrace of state power in its active, modern form. The PPACA is infused with multiple major roles for the states, and as the statute goes into operation over the next few years, states retain, and are already exercising, substantial policy discretion.

via “Our Federalism” Moves Indoors.

“Our Own Limited Role in Policing Those Boundaries”: Taking Small Steps on Health Care

The Patient Protection and Affordable Care Act ignited a political firestorm and raised intriguing new questions of constitutional law. Cutting a path between the liberals and conservatives on the US Supreme Court, Chief Justice John Roberts made small adjustments in established constitutional law to uphold key features of the act. In doing so, he not only upheld the statute but also left the landscape of constitutional law much as he had found it. He did, however, suggest that the federal courts should take a more active role in monitoring how Congress uses its constitutional powers and should not shy away from making specific determinations of whether Congress had abused its power in particular cases.

via “Our Own Limited Role in Policing Those Boundaries”: Taking Small Steps on Health Care.

Health Care Law versus Constitutional Law

National Federation of Independent Business v. Sebelius, the Supreme Court’s ruling on the Patient Protection and Affordable Care Act, is a landmark decision — both for constitutional law and for health care law and policy. Others will study its implications for constitutional limits on a range of federal powers beyond health care. This article considers to what extent the decision is also about health care law, properly conceived. Under one view, health care law is the subdiscipline that inquires how courts and government actors take account of the special features of medicine that make legal or policy issues especially problematic — rather than regarding health care delivery and finance more generically, like most any other economic or social enterprise. Viewed this way, the opinions from the Court’s conservative justices are mainly about general constitutional law principles. In contrast, Justice Ruth Bader Ginsburg’s dissenting opinion for the four more liberal justices is just as much about health care law as it is about constitutional law. Her opinion gives detailed attention to the unique features of health care finance and delivery in order to inform her analysis of constitutional precedents and principles. Thus, the Court’s multiple opinions give a vivid depiction of the compelling contrasts between communal versus individualistic conceptions of caring for those in need, and between health care and health insurance as ordinary commodities versus ones that merit special economic, social, and legal status.

via Health Care Law versus Constitutional Law.

Legal, Imagined, and Real Worlds: Reflections on National Federation of Independent Business v. Sebelius

Chief Justice John Roberts’s opinion upholding the individual mandate in the Patient Protection and Affordable Care Act has been hailed as an act of judicial statesmanship that saved the Supreme Court from serious criticism as a partisan, political institution. This article argues that any such praise should be tempered by an understanding of just how far outside mainstream legal understandings the chief justice’s opinion strayed when considering constitutional issues that were unnecessary to the decision of the case and, in one instance, not ripe for judicial review. Except in its narrow result upholding the mandate, the chief justice’s opinion is heedless of long-standing precedent, aggressive in creating novel grounds for judicial second-guessing of legislative judgments, cavalier with factual assertions, and disrespectful of the position of other governmental institutions.

via Legal, Imagined, and Real Worlds: Reflections on National Federation of Independent Business v. Sebelius.

Something Went Wrong on the Way to the Courthouse

Almost without exception, law professors dismissed the possibility that the Patient Protection and Affordable Care Act (PPACA) might be unconstitutional — but something went wrong on the way to the courthouse. What explains the epic failure of law professors to accurately predict how Article 3 judges would approach the case? This essay identifies three distinct but complementary factors that might help explain the observed failure. First, instead of conducting a neutral assessment of the actual probabilities, law professors engaged in motivated reasoning, based on their preexisting political and policy preferences. Second, the psychology of constitutional law professors led them to massively overstate the probability of success and suppress any misgivings or cautious hedging. Third, once it became clear that the PPACA was in serious jeopardy, our nation’s law professors decided to pursue politics by other means, and organized the academic equivalent of a vigilance committee.

via Something Went Wrong on the Way to the Courthouse.

The June Surprises: Balls, Strikes, and the Fog of War

At first, few constitutional experts took seriously the argument that the Patient Protection and Affordable Care Act exceeded Congress’s power under the commerce clause. The highly political opinions of two federal district judges — carefully chosen by challenging plaintiffs — of no particular distinction did not shake that confidence that the act was constitutional. This disdain for the challengers’ arguments was only confirmed when the act was upheld by two highly respected conservative court of appeals judges in two separate circuits. But after the hostile, even mocking questioning of the government’s advocate in the Supreme Court by the five Republican-appointed justices, the expectation was that the act would indeed be struck down on that ground. So it came as no surprise when the five opined the act did indeed exceed Congress’s commerce clause power. But it came as a great surprise when Chief Justice John Roberts, joined by the four Democrat-appointed justices, ruled that the act could be sustained as an exercise of Congress’s taxing power — a ground urged by the government almost as an afterthought. It was further surprising, even shocking, that Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito not only wrote a joint opinion on the commerce clause virtually identical to that of their chief, but that in writing it they did not refer to or even acknowledge his opinion. Finally surprising was the fact that Justices Ruth Bader Ginsburg and Stephen Breyer joined the chief in holding that aspects of the act’s Medicaid expansion were unconstitutional. This essay ponders and tries to unravel some of these puzzles.

via The June Surprises: Balls, Strikes, and the Fog of War.

Judge overturns Missouri law on birth control coverage : News

A federal judge has struck down a Missouri law exempting moral objectors from mandatory birth control coverage because it conflicts with an insurance requirement under President Barack Obama’s health care law.

The ruling by U.S. District Judge Audrey Fleissig cites a provision in the U.S. Constitution declaring that federal laws take precedence over contradictory state laws. But Fleissig emphasized that she was taking no position on the merits of the Obama administration policy, which requires insurers to cover contraception at no additional cost to women.

via Judge overturns Missouri law on birth control coverage : News.