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A Defeat for Obama, Obamacare, and the All-Intrusive State

2:14 PM, Jul 1, 2014 • By JEFFREY H. ANDERSON
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Yesterday, the Supreme Court ruled that the Obama administration has violated federal law in its implementation of Obamacare. Specifically, it has violated the Religious Freedom Restoration Act (RFRA), a law passed (almost unanimously) twenty years ago by a Democratic House and Senate and signed into law by Democratic President Bill Clinton. Adam White provides a nice overview and analysis of the ruling. I just wanted to highlight a few aspects of it.


This case, Burwell v. Hobby Lobby, wasn’t decided on constitutional grounds but rather on the basis of federal law. And it didn’t overturn any part of Obamacare’s text; rather, it overturned the administration’s insistence that, through its own rules generated under Obamacare’s text, it could force all large employers to offer free abortifacients, such as the abortion drug ella, because such abortifacients are indispensable forms of “preventive health care” (that is, “health care” that prevents one’s own offspring from continuing to survive in the womb).

Nor did the Court overrule the administration’s view that preventive health care requires (to quote Jonathan Last) offering a cure for “the disease commonly known as ‘pregnancy.’” Rather, the Court ruled that the administration’s chosen means to that end violates federal law.  Referring to RFRA, the Court wrote that, “If the Government substantially burdens a person’s exercise of religion, under the Act that person is entitled to an exemption from the rule unless the Government ‘demonstrates that application of the burden to the person — (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”  The Court didn’t take a position on that first point but ruled on the second that there are clearly less restrictive means of achieving this end, such as the (nevertheless deeply flawed) one that the administration has chosen to provide for nonprofit corporations. 

The case hinged in part on whether for-profit corporations are “persons” under RFRA.  The Court, in an opinion authored by Justice Samuel Alito, wrote, “RFRA itself does not define the term ‘person.’  We therefore look to the Dictionary Act, which we must consult ‘[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.’…Under the Dictionary Act, ‘the wor[d] ‘person’…include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.’”

Amazingly, the Obama administration’s Department of Health and Human Services (HHS) — to quote the Court — “concedes that a nonprofit corporation can be a ‘person’ within the meaning of RFRA’ but denies that a for-profit corporation can be the same.  The Court replied,

“This concession effectively dispatches any argument that the term ‘person’ as used in RFRA does not reach the closely held corporations involved in these cases.  No known understanding of the term ‘person’ includes some but not all corporations.  The term ‘person’ sometimes encompasses artificial persons (as the Dictionary Act instructs), and it sometimes is limited to natural persons.  But no conceivable definition of the term includes natural persons and nonprofit corporations, but not for-profit corporations.”

While recognizing that closely held corporations can exercise the religious views of their owners, the Court adds:

“[I]t seems unlikely that…corporate giants…will often assert RFRA claims.  HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring.  For example, the idea that unrelated shareholders — including institutional investors with their own set of stakeholders — would agree to run a corporation under the same religious beliefs seems improbable.”

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