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Welcome to RJ Court Watch, a legal podcast produced by Rewire and with your hosts, senior legal analysts Imani Gandy (IG) and Jessica Mason Pieklo (JMP). In this episode we discuss the Hobby Lobby and Conestoga Wood Specialty cases challenging the contraception mandate in the Affordable Care Act and unpack the legal and political arguments before the Supreme Court.
JMP: So, big day at the Supreme Court. Oral arguments for Hobby Lobby and the Conestoga Wood Specialty cases, and apparently there’s confusion out there about what are the issues before the court and what’s at stake. So this seems like a perfect opportunity for you and I to break this down for folks.
IG: I agree, and it’s such a crucial issue. I have to admit, I’ve been very, very excited about these oral arguments for a very long time, mostly because I’m a bit of a law nerd in that way. But it really is striking to me how many people, whether it be just your average lay person or people in the media or people who are supposed to know these things still seem to be confused about what’s at stake.
JMP: You know, I think some of the confusion too comes from a lot of the willful misinformation that the folks opposed to the contraception mandate have put out there. We’ve talked about how there’s two tracks really to the challenges, right. We’ve got the political track and we’ve got the legal track. And among the areas of confusion, I think, is this really broad statement that corporation owners have religious rights that they get to exercise through their businesses. And that’s just fundamentally a misstatement of the law.
IG: Yeah, it really is. And to adhere to that notion would be a fundamental rewriting of corporate law. And so, what these corporations are trying to do, is they are trying to avail themselves of the bits or corporate law that they like, but then ignore the stuff that they don’t want to adhere to. So, for example, when you form a corporation you get to avail yourself of limited liability, so if your company gets sued then you personally, as an owner or as a shareholder, by in large are not responsible for whatever liability you incur. And that’s why people form corporations. But what these corporations and these corporate owners want to do is to sort of pass through their own religious liberty through to the corporation. And that just not a) how it works and b) the point is that Hobby Lobby or Conestoga Wood or any of these corporations that are seeking religious liberty. It’s the corporation that will have to pay the fine, not the actual individual owners. So there’s this attempt to conflate the owners with the corporation and that violates literally hundreds of years of corporate law.
JMP: And when we talk about conflating the corporation with the owner and violating hundreds of years of corporate law we have to think of why would they want to do it.
IG: There have been some amicus briefs that have been filed by states, especially by states with Republican governors that are making the argument that well, we have state laws that govern corporate law and its improper for the Supreme Court or for Congress or for any federal level entity to try and state what the law should be in the states. But at a certain point there has to be rules and there has to be regulations. And while it is true there is no federal body of corporate law, there are laws that underpin all of the state corporate laws. So what they are trying to do really seems to me to be is to dismantle corporate law as we know it.
JMP: Absolutely. And so a good example of some of those federal laws that underpin state corporate law would be Title VII of the Civil Rights Act, for example. Any of our fair employment-type laws, overtime, wage compensation, anything that we’ve seen historically for-profit corporations raise objections to under the guise of religious liberty. This is nothing new and for some reason we’ve found a new way to package it and to sell it.
IG: Yeah I think it’s gotten, you mentioned earlier the two tracks, there’s the legal track and the political track. I think if we were to look at it from purely a political standpoint I would have to admit that Hobby Lobby is winning. But when you look at the actual legal arguments and there are so many legal arguments whether or not you want to talk about the elements of RFRA, the Religious Freedom Restoration Act, or whether you want to talk about the Free Exercise clause, or the Establishment Clause, I really do think in terms of legal arguments that the birth control enthusiasts such as we are, have the winning argument. So the question really becomes whether or not the Supreme Court is so politicized at this point in time that it will sway toward the politicization of these cases rather than following what the law says. Because in my opinion, and I think in a lot of peoples’ opinions if you are going to look at the number of amicus briefs filed as any indication, it’s that we win. You know, Hobby Lobby loses, Conestoga Woods loses, they can’t burden third-parties, they can’t make us pay for their religion by denying us birth control or forcing us to pay out of pocket for birth control.
JMP: That’s an excellent point. And so because the politics has driven much of the conversation around the legal claims, what hopefully we will see, or hear, in oral arguments is the legal claims rising to the top. So you mentioned the Religious Freedom Restoration Act. That’s the primary statute under which these claims have arisen. And that’s a federal statute that is designed to reinforce certain individual religious liberty rights from government regulation. And that’s important because what’s really at issue here out of the gates is the definition of person under the Religious Freedom Restoration Act and whether or not that definition of person includes a corporate person, as in a for-profit corporation. So there is an opportunity for the court to give what some might consider a technical or a procedural type of ruling and avoid the larger issue of whether your boss can object to contraception based on religious grounds and say they don’t fit the profile or definition under the statute. So that’s one possibility. But if they don’t then I guess we’ll have a much better understanding of just how politicized the Roberts Court has become, and in particular on issues of the culture wars like contraception and health care, abortion, gay rights, we’ve seen it.
IG: Right. And I think it’s really important to recognize that what we’re talking about here isn’t women who want free birth control so they can go out and be promiscuous. And it’s not that women want employers to give them birth control, or to pay them for birth control or to give them free birth control. What we’re talking about here is including birth control as a part of reproductive health care, and because employees of businesses pay for their health care through insurance premiums, birth control should be a part of the health care to which they are entitled. Essentially we are saying that there shouldn’t be a health-care gap that the employers can create because they think that their religious liberty prevents them from providing a certain type of health care to which they are opposed.
JMP: That’s exactly it. We talk about a gendered wage gap and what we are talking about with the contraception mandate is a gendered health care gap. Hopefully the Roberts Court agrees with us.
IG: I have to say this is one of the biggest cases of the year, and it has a lot, and it’s going to have a lot of influence on future court cases and also in the states. I mean you have this push right now to pass what I like to call baby RFRAs, these tiny little Religious Freedom Restoration Acts laws that are intended to discriminate against people. So in this case we’re discriminating against women because we’re saying an entire category of their health care isn’t really health care. In Arizona, as we saw, they are trying to discriminate against lesbian, gay, and transgender people. And what it boils down to is are we going to allow religious tyranny to allow religious discrimination against oppressed groups or minority groups.
JMP: I think the movement at the state level, I’m glad you brought it up it’s really important because I also think maybe it speaks to some concerns that the opposition has about the merits of their case at the Supreme Court. You know civics and federalism sounds really dry and dull and boring and for some folks it might be but its really important when we talk about these kinds of challenges here because when the states pass those baby RFRAs, or their mini RFRAs, what they are basically trying to do is to create extra protections at the state level that the federal law doesn’t recognize. So Arizona doing that is basically, you know, trying to pad itself in the event that well it doesn’t go well at the federal level here in Arizona or Mississippi or some of the other states that had pushed these through or are trying to expand their RFRAs already on the books, we’re going to at least create these little pockets of discrete state protection for this kind of discriminatory conduct. Thankfully there’s been a pushback against it, but I think that’s an important point that doesn’t really get drawn out in this conversation.
IG: Yeah and I also think that the pushback at the state level might influence the pushback at the federal level because people will start to see how these laws are being used. Because for some reason, as Professor Elizabeth Sepper mentioned to me in an interview that I did with her for an article that I wrote that there just seems to be this overwhelming feeling that birth control and reproductive health care isn’t really health care. And so I don’t think people, people seem to not care about it as much as they do about protecting the rights of lesbian, gay, bisexual, and transgender people to frequent businesses, or if you really want to go to the extreme, protecting the rights of minorities, Blacks and Latinas and what have you to frequent businesses. I mean, that’s what we’re really talking about. That’s the slippery slope. And so I think the slippery slope might actually change some minds and force people to think about what it is that these states are trying to do with these mini Religious Freedom Restoration Act laws.
JMP: So that’s some cold comfort. I mean it’s good news in the sense that the overreach may have done exactly what overreach does, which causes people to recoil against it. But unfortunately respecting women’s autonomy and their own health care and reproductive health-care needs, let alone their benefits and contributions to the workplace, that somehow hasn’t been sufficient enough yet to get people riled up against this. The good news is they just announced that they have extended oral arguments from an hour to an hour and a half, so we have more time to sort this out. The bad news is we’ll likely be waiting until the end of June for a decision. So for folks like you and me Imani that means a lot of, I don’t know, yelling on the Internet and teeth gnashing over the politicization and rhetoric around the contraception mandate and the legal challenges, particularly in the media.
IG: Yeah, it’s going to be an interesting spring. And I think this is going to be as huge of a June as we saw last year with DOMA and the year before with Obamacare. I mean, the Supreme Court is taking some juicy cases and this is one of the juicier ones.
JMP: Agreed one thousand percent and thankfully we have Emily Martin from the National Women’s Law Center to help further explain exactly what the issues are before the court and the range of possible outcomes that we could see come this summer, so stay tuned.
JMP: We are joined with Emily Martin, vice president and general counsel of the National Women’s Law Center. Emily, thank you so much for your time and we’re looking forward to you giving us a good overview of the issues before the court and some of the possible outcomes.
EM: Great! Thank you for having me.
JMP: So there’s been pages and pages and pages of briefing, hundreds and hundreds of pages of briefing that I know you, Imani and I have all sort of poured over in various points and times but I’m curious as to what you see as some of the most important issues before the Roberts Court in the Hobby Lobby and Conestoga cases.
EM: Well one of the most important issues, and is sort of a key threshold issue, is whether a for-profit corporation like Hobby Lobby or Conestoga Wood has the right to exercise religion. And that is sort of the question the court will have to answer before it gets to any of the other questions in the case and it’s a question with really big implications since what Hobby Lobby and Conestoga Wood are arguing is that they as for-profit corporations not only have religious rights, basically the right to pray as corporations, but they have the right to exercise their religion in a way that harms third parties and that’s a fairly radical assertion with potentially large implications if they were to succeed in those arguments.
JMP: Can you lay out some of the implications for what those would be?
EM: So if Hobby Lobby and Conestoga Wood were to succeed in this case, then presumably for-profit employers would have the right to object to providing all sorts of other kinds of health-care coverage based on their religion, everything from vaccines to blood transfusions to HIV treatments, that those are all kinds of health care that a for-profit employer could potentially say, “[Y]ou know, I have a religious problem with this coverage of your insurance. We’re not going to cover that regardless of what we would be legally required to cover otherwise.”
But it’s also the case that it goes even beyond the health-care context since if an employer has a religious right to say, “[Y]ou know what, we’re not going to follow this law and we’re not going to provide the birth control that we are legally required to provide and that you have a right to,” an employer could also assert, “[Y]ou know, we as a for-profit corporation have a religious objection, for example to paying women as much as we pay men. And even though the law requires us to do that, because it substantially burdens our religion we don’t think we have to.” And those are the sorts of cases that you could see. You could also see cases where for-profit employers assert that they have the right to, for example, to deny service to somebody based on their sexual orientation or their race, the same sorts of issues we heard being debated in Arizona recently when Arizona was trying to broaden its religious rights bill to include corporations. Those are all possible outcomes should Hobby Lobby succeed in its arguments before the court.
JMP: Why do you think that the opposition so far has succeed in largely framing this as an issue of religious liberty when in reality there’s so much more going on here.
EM: Frankly I think that the conversation in Arizona was helpful in its timing in making clear where religious liberty arguments can lead if you give for-profit corporations really broad religious rights and making clear that what we are really talking about here is the assertion that religion gives you the right to discriminate against others and to harm others, to violate others’ rights. And that is not something that we have a history of allowing people to do in the name of religion, let alone corporations.
JMP: Your organization has been really involved in tracking and participating in the challenges to the contraception mandate and defending the mandate. What have been some of the most surprising arguments you’ve heard against the contraception mandate?
EM: Well, I don’t know if its surprising, but it’s certainly always notable when arguments are made against the contraception mandate based on the notion that somehow birth control is some kind of optional luxury that women should have to pay for on their own. So for example one of the briefs against the mandate in one of the many cases out there said that, “[Y]ou know, women can use their own money to buy contraception, cocaine, or cotton candy, whatever they want, and so denying coverage for birth control shouldn’t have a real impact, because women can always just use the money out of their paycheck to buy contraception.” Which really shows first of all a ridiculous trivialization I think of the importance of birth control as fundamental preventative health care for women. And it also ignores that cost barriers have a real impact on women’s ability to access the most effective and appropriate forms of contraception for them. So, for example, one of the particular forms of contraception that Hobby Lobby and Conestoga Wood are objecting to is the IUD. The IUD happens to be an extremely effective form of contraception but a form of contraception that has a pretty big cost barrier to entry. It can cost about $800 to get an IUD right at the front end, which means its too expensive for lots of people if they don’t have insurance coverage for it. And what the contraceptive coverage requirement does, is allow, it takes away that obstacle and makes sure that if the IUD is the most appropriate form of birth control for this particular woman based on her judgments about her situation and her advice of her health-care provider that the cost isn’t going to force her to use something that is less appropriate and less effective. And I think it’s a little shocking how arguments against the contraception coverage requirement ignore those real world impacts.
IG: Are you surprised by the number of amicus briefs that have been filed and do you have any particular favorites that you think make the argument, well besides your own, your organization’s, but do you think there have been any amicus briefs that have been filed that really cut to the heart of these issues in this case?
EM: Well I think there have been a lot of great briefs that really tell the story from a lot of different perspectives. So, including some unusual perspectives. So, for example, there’s a brief by corporate law professors that talk about how the idea of allowing a corporation to exercise the religion of its shareholders is really contrary to basic tenents of corporate law, which really creates an important distinction between the corporation and the people who own the corporation. So that’s been an interesting and important angle. There is another brief filed by the Women’s Chamber of Commerce and the LGBT Chamber of Commerce that really talks about the corporate governance issues that could arise if you recognize a corporate right to exercise religion and how this could really be a pain in the neck for a corporation who was not interested in exercising religion but who may face shareholder lawsuits saying, “[W]e as your shareholders think you should exercise religion xyz,” and would be faced with having to navigate these competing claims from stakeholders.
There are also some great briefs that go into the public health interests that are forwarded by this requirement, including ours, but others as well, that talk a lot about how important birth control is to women’s health, and to the health of the children they bear since spacing a pregnancy is important to children’s health as well as to women’s health. And there are some briefs that come from religious groups talking about how if you were to grant Hobby Lobby and Conestoga Wood the rights they are seeking, that that really harms religious pluralism in this country, given that it would allow those corporations to impose their religious beliefs on their employees who come from many different faiths. So I think that those are some of the most important parts of the story that the Supreme Court should be paying attention to.
JMP: I know it’s impossible to really extrapolate conclusions from oral arguments, but it’s also really fun to do so, and I was wondering if you had any thoughts on what we should be looking or listening for at the oral arguments?
EM: Well, obviously sometimes you get some sense of whether the court or whether a particular justice is inclined to accept the arguments of one side or another. Some of the things I’ll be looking for is how seriously the justices take the fact that contraception is a key element of health care for women and is really important to women’s equality. Obviously accepting those principles goes a long way to accepting the importance and validity of the requirement. But frankly I hope the conversation never gets that far because really the legal questions, the legal inquiry should stop at, when you ask whether Hobby Lobby and Conestoga Wood have the right to exercise religion or whether their shareholders have the right to exercise religion in this way as for-profit companies. And my hope is that where the entire argument focuses, because those should really the questions that resolve the whole case, and you never have to get to the questions of well, does this requirement forward a compelling interest and is it narrowly tailored to do so, or does this requirement actually substantially burden religion. Because it should just go away because for-profit corporations have no business exercising religion, literally.
JMP: So that’s one possible outcome, and I agree with you, I really hope that the court gets there and it’s a short inquiry. But what are a couple of the other outcomes should they provide a little more, I don’t know, curious or eager to strike at the mandate in more detail?
EM: Well, of course, the Supreme Court can in some ways do whatever the court wants and it’s possible I suppose that were Hobby Lobby and Conestoga Wood were to succeed in their claims that the court could try to write some very narrow opinion that really was in some ways limited to the contraceptive coverage requirement and didn’t open the door to all these other potential religious objections to a host of laws protecting employees’ rights and protecting the rights of consumers. Frankly I think, though, that opinion would be really hard to write. So, if the court finds that a corporation can exercise religion, and then the court has to answer the question of whether the coverage requirement actually substantially burdens the religion of the company or the shareholders. And again, there are lots of good reasons why the court should find that it doesn’t. It’s the decisions of women and their health-care providers whether insurance will be used for contraception, there are a lot of links in the chain before the package of benefits that the employer offers would actually result in this particular form of contraception being provided. And in some ways it’s just like when a company gives a woman a paycheck and she decides what she wants to buy with her money. The fact that she buys contraception with her money doesn’t substantially burden the religion of anybody and neither does this requirement. So that’s another place where the court could say to Hobby Lobby and Conestoga Wood “you lose.”
Or if the court found that it actually does substantially burden this religious exercise, then the court will look at whether the requirement is a narrowly tailored way of forwarding a compelling interest. And again, we think they should lose there too because of the compelling interests that are being forwarded by this requirement, the compelling interests in public health and in gender equality and that this requirement is narrowly written to forward. So there are lots of different ways that they could lose.
If they win, though, I really am worried about the breadth of any decision the court would write because again the court can always do what the court does, and in Bush v. Gore the court says “this decision isn’t precedent, it really just goes for this matter only, don’t take this seriously going forward, we’re just deciding this case.” And maybe they would try to say this is just about birth control which is somehow unique in burdening religion. But I think what is more likely is that if Hobby Lobby and Conestoga were to win it would really open a lot of troubling doors for other religious objections to laws that we all depend on and rely on.
JMP: I could not agree with you more. Emily thank you so much for giving us an the listeners this overview. We’ll have a lot to talk about no doubt later this summer when the Supreme Court comes down with its decision. I have a feeling this is going to be one of those that is tacked on at the very end of the June decision push, but maybe I’m wrong. Maybe they’ll come to something swifter.
EM: Again, they can always do what they do.
JMP: This is true. Emily Martin from the National Women’s Law Center thank you so much for joining us and please, we will have you back to help us understand what decision the Roberts Court eventually comes to on all of this.
EM: Thank you so much.
Thanks for listening to RJ Court Watch and join us for future episodes where we discuss reproductive justice of the march in North Carolina, clinic protests, buffer zones, and efforts by the anti-choice movement to weaponize the First Amendment, as well the meaning of the undue burden standard in an age of targeted restrictions on abortion providers.
Music courtesy of Moby Gratis.
Special thanks to Kelly Pieklo for audio edit and services.