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Hobby Lobby: No Veil, No Precedent, No Multiple Payers?

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In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court's right-wing majority recently concluded that for-profit corporations are "persons" under the Religious Freedom and Restoration Act ("RFRA"). As a result, closely-held for-profit corporations need not provide insurance coverage for certain contraceptive methods if such coverage violates the sincerely-held religious beliefs of their shareholders. Instead, to achieve a less-restrictive result for the companies/shareholders, the burden for any such coverage must be shifted elsewhere. Though an apparent victory for the plaintiffs, corporate America (especially the plaintiffs and other closely-held corporations) might want to take a second look at the case. Others who support a single-payer health care system might also want to take a second look at the case.

Though the right-wing majority found that corporations were themselves persons under RFRA, they also phrased the question before the Court as whether contraceptive insurance requirements applicable to the closely-held plaintiff corporations "violate[d] the sincerely held religious beliefs of the companies' owners." This can be problematic phrasing if one cares about maintaining the corporate veil. Where corporate religious beliefs are directly identified with shareholders' religious beliefs, what happens to the veil of separation between corporation and shareholder? Given the fundamental, personal nature of religion, this veil of separation question seems all the more difficult. Where closely-held corporations and shareholders merge at such a soul-deep level, how can there be room for separation at any level? (I'm of course assuming for the sake of analysis that legal fictions like for-profit corporations can have religious beliefs and can exercise religion in any meaningful sense of the terms.)

To add to the potential confusion here, the majority also opined that "[c]orporations, 'separate and apart from' the human beings who own, run, and are employed by them, cannot do anything at all." Presumably what the majority meant to say was something like: "Corporations are legal fictions who can only act through their agents." These two phrases, however, are hardly identical. It's hard to see how the former isn't useful phrasing for anyone wishing to pierce the corporate veil. If, for example, an employee claims that a closely-held corporation has violated some federal statute, why can't she sue the shareholders directly since, again, corporations can do nothing that's "'separate and apart from' the human beings who own, run, and are employed by them"?

Corporate America might also worry about a deeper level of damage flowing from Hobby Lobby. Property has little value without the rule of law. For obvious reasons of fairness and predictability (not to mention judicial economy), rule of law requires generally treating like cases alike. The majority, however, went out of its way to try to limit the precedential value of this case: "[i]n any event, our decision in these cases is concerned solely with the contraceptive mandate." And again: "[t]his decision concerns only the contraceptive mandate and should not be understood to hold that all insurance-coverage mandates, e.g., for vaccinations or blood transfusions, must necessarily fall if they conflict with an employer's religious beliefs."

But why not? How can the majority's reasoning not apply to sincerely-held religious beliefs against covering vaccination? Why couldn't "vaccination" be substituted for "contraception" at every point in the opinion without changing its logic (or lack thereof)? The majority's response is hardly compelling: "Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them." Birth control, however, can also prevent passage of terrible genetic diseases to further generations, and the cost of vaccination could always be passed to the government itself if insurance companies themselves could not bear it. As the majority itself notes, having the government bear the cost can be the "most straightforward way" to address the least-restrictive means issue. Is the real answer, then, that vaccinations simply aren't the same red meat for some social conservatives that certain contraceptive methods are? If so, this hardly inspires confidence in the rule of law.

As corporate America studies Hobby Lobby, perhaps it will therefore begin to worry. Interestingly, on the other hand, those who support a single-payer health care system may see some hope in the case. As Justice Ginsburg (a liberal justice) points out in her dissent, the list of religious health care objections is potentially endless: "blood transfusions (Jehovah's Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)." Since the conservative majority acknowledges that the government's picking up the cost of these potentially-endless objections can be the "most straightforward way" to address the least-restrictive means issue, perhaps they have set us on a course to a single-payer system.