Professor Myriam Gilles' article The Day Doctrine Died: Private Arbitration and the Rule of Law is the sole article awarded High Distinction by the Pound Civil Justice Institute's 2019 Civil Justice
March 20, 2014 USA Today - WASHINGTON — President Obama's health care law gets a return engagement at the Supreme Court next week in a case full of hot-button issues: religious freedom, corporate rights, federal regulation, abortion and contraception.
Put another way, it's a case about God, money, power, sex — and Obamacare.
Nearly two years after the court's 5-4 decision upheld the law and its controversial individual and employer mandates, the justices will consider a different requirement — that companies pay for their workers' birth control.
In a Supreme Court term that has lacked the drama of last year's gay marriage and civil rights cases or the prior term's health care showdown, the so-called "contraception mandate" now commands center stage.
It's been the subject of more than 100 lawsuits across the country, including 78 that are still pending. More than 80 outside groups submitted briefs to the Supreme Court. A related case filed by an order of Catholic nuns called Little Sisters of the Poor required an emergency stay from Justice Sonia Sotomayor on New Year's Eve, just hours before she led the countdown for the ball drop at Times Square.
"This literally has taken on a life of its own," says John Bursch, a former Michigan solicitor general who argued eight cases at the court in the past three years.
"It's this term's gay rights case," says Pamela Harris, a Georgetown University law professor and former Justice Department official.
On one side is the Obama administration, insistent that health policies written under the Affordable Care Act include full coverage for all methods of birth control.
On the other side are two family-owned corporations — the Hobby Lobby chain of arts-and-crafts stores and Conestoga Wood Specialties Corp., a Mennonite-owned cabinet maker. They cite religious objections to intrauterine devices (IUDs) and "morning-after" pills, which they say can cause abortions.
The two cases, which will be argued together by the same lawyers who faced off over the health care law in 2012, present hotly contested legal questions. Here are four of them:
QUESTION ONE: DOES RELIGION TRUMP THE LAW?
The central focus will be on the sweep of the Religious Freedom Restoration Act, as well as the First Amendment's protection of religious exercise.
Passed easily by a Democratic Congress and signed by President Clinton, the law was a response to a 1990 Supreme Court decision that denied state unemployment benefits to a man fired for using peyote as part of a religious ritual.
Unless the companies can hide behind that law, they face fines of $100 per day per employee. That could cost Hobby Lobby $475 million a year for its 13,000 workers. It would be much less expensive to drop health coverage altogether — $2,000 per employee per year, or $26 million, less than the cost of providing health insurance.
Georgetown University law professor Martin Lederman says there really is no "contraception mandate," since companies can decline to offer health insurance. The companies say that's an unrealistic option in a competitive marketplace.
The birth control rule is "a conscience harm," says Michael McConnell, a Stanford University law professor and former federal appeals court judge. As such, "it has potential implications for a very wide range of free exercise claims."
Indeed, critics of religious exemptions predict that if the court allows this one, challenges to other forms of health care will follow, from vaccines to do-not-resuscitate orders.
"There's a lot at stake here. This is the culture war," says Marci Hamilton, a law professor at Yeshiva University. Already, she says, the country is seeing "an explosion in these types of laws."
Even if the contraception rule imposes a burden on the companies or their owners, that must be balanced against any burden they place on others — in this case, women who would have to pay for morning-after pills or IUDs.
The religious freedom law "was never meant to trump all of the civil rights and the health protections that Americans have in this country," says Marcia Greenberger, co-president of the National Women's Law Center.
QUESTION TWO: DO CORPORATIONS HAVE A CONSCIENCE?
Walk into one of Hobby Lobby's 556 stores nationwide and you'll shop for collage frames and candle holders to the sounds of Christian music. Don't look for shot glasses, which promote alcohol use. And don't come on Sundays, when all stores are closed for family time and worship.
Along with Conestoga and Hobby Lobby's affiliated Mardel Christian bookstores, the company contends that for-profit businesses enjoy the same rights as people to exercise religious beliefs — even if they have $3.3 billion in annual revenue and rank 135th on Forbes' list of largest U.S. companies.
"We see companies act on ethical and philosophical and moral views every day of the week," says Mark Rienzi, an attorney with The Becket Fund for Religious Liberty, which is representing Hobby Lobby in court.
The Supreme Court ruled in 2010's Citizens United v. Federal Election Commission that corporations have free speech rights and, therefore, can spend freely in federal elections. Whether they can practice religion is another question — albeit one the justices need not answer if they base their decision on the owners' rights.
The 10th Circuit Court of Appeals sided with Hobby Lobby last June in a 5-3 ruling.
"Corporations are groups of people," says Timothy Sandefur, an attorney with the conservative Pacific Legal Foundation. "There's a very long history of corporations mingling religious and profitable activities together."
The government's defenders argue that for-profit corporations cannot claim religious rights, even though churches and religiously-affiliated non-profits such as hospitals and universities have won exemptions or accommodations under the law. That was the view of a divided Third Circuit Court of Appeals panel that ruled against Conestoga in July.
"For-profit corporations do not and should not have religious rights," says Caroline Mala Corbin, a University of Miami law professor. "They have no soul, and they certainly don't have a relationship with God."
QUESTION THREE: CONTRACEPTION OR ABORTION?
The centuries-old battle over religious rights wouldn't be happening without a more recent fight over reproductive rights.
The stakes are high. Women spend on average about five years trying to conceive and give birth, compared with about 30 years trying not to get pregnant, according to the Guttmacher Institute.
That makes effective and affordable birth control an essential benefit, advocates say. Without coverage or with shared costs, women spend more on health care than men, creating the type of sex bias that Justice Ruth Bader Ginsburg built a law career battling.
"It's another one of these social moments," says Louise Melling, deputy legal director at the American Civil Liberties Union. "Are we going to address this vestige of discrimination?"
Unfortunately, the most effective forms of contraception often are the most expensive. Hobby Lobby and Conestoga object to four methods — two types of IUDs and two types of emergency contraception, Plan B and Ella. IUDs, which fail less than 1% of the time, can cost close to $1,000.
The companies and their allies claim that those four methods cause abortions by blocking a fertilized egg from implanting in the uterus, a warning that's included on Food and Drug Administration labels.
"These drugs have life-ending effects," says Anna Franzonello, counsel for Americans United for Life, an anti-abortion group. To defend such methods, she says, "is like saying because it's not killing somebody at a later stage of life — it's killing them at an earlier stage — it's not killing."
Groups that lobby for reproductive rights contend the drugs and devices do no such thing — they merely prevent fertilization by inhibiting ovulation or by preventing sperm from reaching the egg. That helps to prevent unwanted pregnancies, which often lead to surgical abortions later on.
"This is contraception, not abortion. The scientific facts are important," says Hal Lawrence, CEO of the American College of Obstetricians and Gynecologists. If the companies win, he warns, "What comes next? Limits on coverage for vaccinations?"
QUESTION FOUR: WILL OBAMACARE SUFFER A SETBACK?
Lost at times in the debate over religion, reproduction and corporate rights is the playing field for all those debates: the Affordable Care Act.
The court's most time-consuming and controversial case in years was the 2012 showdown over Obama's health care law. It had teetered on the legal brink until Chief Justice John Roberts split from the court's other conservatives and rescued it in a 5-4 decision.
While the stakes are much lower this time, "all things Obamacare attract a lot of attention," McConnell says.
It's not the only challenge to the law, but it has the best chance of success. Other lawsuits pending in lower courts are challenging the way the law was passed, the way it was worded and the bureaucracy it created. While considered long shots, a victory by opponents would have a far broader impact.
Even if the contraception challenge succeeds, the law will remain virtually intact. Its opponents contend that female employees ultimately will get full contraception coverage, either from the government or private insurers.
"This would be a big victory for religious liberty, but it wouldn't be a significant defeat for the Affordable Care Act," says Randy Barnett, a Georgetown University law professor whose legal arguments formed the basis for the original challenge.
The decision could have a psychological impact, however, on a law that has suffered more than its share of website glitches and administrative delays. And it could have a political impact for the White House.
"It's just another brick in the wall," Bursch says. "You start to wonder, is the ACA ever going to be implemented fully?"