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.”
This case involved three closely held corporations: Hobby Lobby, the cabinet-maker Conestoga, and — although the mainstream press usually omits this part — Mardel, a Christian bookstore business. That’s right: the Obama administration tried to force Christian bookstores to provide free abortifacients. (Moreover, it apparently thought it was being restrained. As the Court puts it, “Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question — for instance, third-trimester abortions or assisted suicide.”)
Justice Ruth Bader Ginsburg’s dissent spends a fair amount of time defending the Obama administration on policy grounds. After a brief, two-paragraph introduction, she starts the body of her opinion with this line (quoting from Planned Parenthood v. Casey): “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.” (She might have added, at the expense of their employer and the greater expense of their offspring.)
But an interesting aspect of her opinion is her echoing of HHS’s, and Obama’s, view of for-profit entities. For-profits aren’t important and vital contributors to society that provide desired products while often adhering to certain religious or moral codes. Rather, the world is divided into those who do good (the government, the Court, nonprofits) and those who make money (and must be controlled by government). In a part of her opinion that was joined only by Justice Sonia Sotomayor, an Obama appointee, Ginsburg writes (again, quoting from a prior opinion) that “‘for-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a community of believers].’” In other words, for-profits are just that — for profits. They are only about making money.
This points to a wider victory in this case, a victory for the sorts of civil associations and for-profit businesses that are at the heart of American society. These are the very entities — ranging from small civic groups, to religious charities, to closely held businesses with moral compasses — that Obama and Obamacare are actively in the process of bulldozing. The Court’s opinion decimates the administration’s distinction between non-profits and closely held businesses while also highlighting the differences between such closely held businesses and the giant corporations that are more often the allies of big government. It’s telling that the largest company in America — Walmart — is an Obamacare supporter, while the companies that are always trying to fight off the relentless regulatory onslaught of this administration are, at least disproportionately, the little guys.
The crucial importance of the space between the isolated individual, on the one hand, and big government and its big-business allies, on the other, points to the fact that, while this particular case hinged on a law protecting religious liberty, the bigger issue at stake is liberty itself. When the Obama administration released its “preventive health care” decrees under Obamacare, I wrote, “Such overt politicizing of medicine is wrong on at least seven levels:
“1. Insurers shouldn’t be mandated by law to have all of their new health plans cover birth-control pills, thereby denying Americans the freedom to select health plans of their own choosing, whether or not those plans cover such pills.
“2. Even if it were justifiable to mandate that insurers only offer plans that cover birth-control pills, such mandates shouldn’t require insurers to provide such pills for free, thereby making everyone else pick up the tab.
“3. Even if it were justifiable to mandate that insurers only offer plans that provide free birth control pills, such plans shouldn’t also be required to cover abortion drugs.
“4. Even if were justifiable to mandate that insurers only offer plans that cover abortion drugs (and free birth-control pills), such mandates shouldn’t require insurers to provide such abortion drugs for free.
“5. Even if any or all such mandates were justifiable, they shouldn’t be issued by the federal government but instead should be issued by state or local governments — a national decree entailing too much consolidation of power and control in Washington.
“6. Even if any or all such mandates were issued by the federal government, they shouldn’t be issued under the specious legal justification that, under Obamacare, such mandates are promoting “preventive medicine” — a term whose plain meaning refers to preventing diseases or ailments, not to preventing conception or the subsequent development of that conceived being.
“7. Even if any or all such mandates were issued by the federal government under this specious legal justification, they shouldn’t apply to religiously affiliated organizations whose moral teachings are contradicted by the use of such drugs.”
The Supreme Court’s welcome ruling in this case — in allowing closely held businesses to conduct themselves according to their owners’ religious convictions — addresses only this seventh level (and doesn’t remotely resolve it in full). As for the other six, there’s only one true remedy: Repeal Obamacare, and replace it with real reform.
Jeffrey H. Anderson is executive director of the 2017 Project, which is working to advance a conservative reform agenda.