11/27/2013 01:25 pm ET Updated Jan 27, 2014

New Supreme Court Contraception Cases Test Corporate Rights

The United States Supreme Court this week decided to take two cases involving corporate rejection on First Amendment religious grounds of a government mandate. The mandate under President Obama's Affordable Care Act (ACA) extends insurance protection to employees for contraception without copayment. In 2012, the Supreme Court upheld the ACA from other challenges under the government's authority to tax. Though usually separately decided, reproductive rights, health care and corporate power have been among the most controversial issues the Supreme Court has undertaken in recent years.

A Political Third Rail
To see just how controversial such topics are, one need look no further than the failed candidacy of Mitt Romney. Among his most damaging political missteps was a comment at the 2011 Iowa State Fair. Mr. Romney, a highly accomplished businessman, responded to a heckler's oft repeated criticism of his focus on entitlement reductions, including those for needy individuals, as opposed to greater corporate taxation by retorting, "Corporations are people, my friend... of course they are. Everything corporations earn ultimately goes to the people." In national politics one of the most surefire ways to self immolate is to appear to put corporate interests above the hard-fought personal benefits extended to needy people. Another is to make highly offensive misstatements of fact in discussions about reproductive rights. Take Republican Missouri U.S. Senate candidate Todd Akin's statement:

If it's a legitimate rape, the female body has ways to try to shut that whole thing down. But let's assume that maybe that didn't work or something: I think there should be some punishment, but the punishment ought to be of the rapist, and not attacking the child.

Contraception's Evolving Legal Protections
Even before our twittersphere society, political suicide, could extend even to less inflammatory commentary involving reproductive rights. Such was the case with deceased Romney judicial advisor and constitutional strict constructionist Robert Bork, whose 1987 confirmation to the U.S. Supreme Court was torpedoed by his criticism of Griswold v. Connecticut, the Supreme Court's 1965 decision overturning a law that criminalized a married couples access to contraception. Bork correctly asserted that the constitution's Fourth Amendment did not have the word privacy in it, but then by extension maintained that there was no broad constitutional privacy right that extended to access contraceptives. He extrapolated, as strict constructionists do, that activist judges confer rights not specifically delineated by the exact text of the Constitution, usurping the job of legislatures, who sometimes enact "utterly silly laws." Senator Kennedy correctly, though harshly, noted that many of the hardest fought modern anti-discriminations and personal protections came from interpretive judicial decisions of the kind Mr. Bork detested. Alan Dershowitz labeled him, "one of the best nineteenth century minds America has to offer." A common humorous criticism about strict constructionists is that they are bound by centuries-old text over logic, so even an objection to the Air Force is possible, because it is not found in the constitution. Strict constructionists counter that unchecked rulings by judges allows an unelected branch of government to impose rules on society without regard to proper safeguards.

Progressives like the late Supreme Court Justice William Douglas viewed the constitution as a living document which while anchored to its text, is also one that takes into account case precedent, modernity and a connect the dots view of the "penumbras" and overall goals of the specific protections included in the text. Douglas used such logic in judicially affirming a general right of privacy that was implied, but not categorically delineated in the actual text of the constitution.

How Far Do The First Amendment Rights of Corporations Go?
This week's decision by the Supreme Court to examine a challenge to President Obama's ACA corporate mandate to provide insurance coverage for contraception, involves a fascinating deep legal issue, once one gets beyond the understandable political cacophony.

On the one hand, there is an accepted legal right for individuals to access contraception. Moreover, there are very strong medical and public policy reasons to make this access broad and affordable. Indeed, the social, health and economic costs of preventing unwanted pregnancies is a substantial one, in addition to the personal liberty interests of individuals and couples regarding whether to become parents. Contraceptives are among the most widely prescribed pharmaceuticals in the nation and part of the health care infrastructure of society, despite the fact that there are those who favor other methods.

Should those whose sincere religious beliefs make not only abortion, but various forms of contraception a terrible sin as well, be forced to pay for the right of an employee to access such treatment? The administration offered an olive branch by exempting small companies, and religiously affiliated institutions like charities, colleges, and hospitals. But how far should the right of corporations involved in secular business extend when their owners have deeply held beliefs? Candidate Romney's assertion about corporations, while political hemlock, does have some foundation in American law. Corporations have rights, not only to engage in business but, First Amendment rights as well, with some laudable examples. Starbucks was out front urging political parties to "come together" during recent political disagreements over the debt ceiling. Just this week after a photo of an Indian Sikh couple was vandalized in a New York subway, the GAP put the couple's image on their website. In 2010 the United States Supreme Court in Citizens United v. Federal Election Commission held that various entities including labor unions and corporations have First Amendment rights to speech in the context of political campaigns. In addition courts have held that corporations could be subject to criminal prosecution.

The two appeals, Sebelius v. Hobby Lobby Stores and Conestoga Wood Specialties v. Sebelius, come from two different appellate courts that reached conflicting conclusions. The United States Court of Appeals for the Third Circuit in Philadelphia in the Conestoga case rejected the assertion of the company's Mennonite owners that a corporation's First Amendment rights extend beyond speech and into the realm of religious exercise. In the Hobby Lobby case the United States Court of Appeals for the Tenth Circuit in Colorado held not only that a 1993 law banning governmental interference of a person's religious freedoms extended to corporations as well, but that the government's insurance mandate violated such rights.

The First Amendment protects both free expression and religion:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Two things are worth noting. First, corporations are not only given rights, but can be regulated for the public welfare. In the 1960s Supreme Court cases involving restaurants and hotels that racially discriminated upheld the government's power to force integration under Congress' authority in the Commerce clause despite the business owner's invocation of their rights. Second, even if the Supreme Court rules that corporations do have the right to religious exercise, it does not mean such rights are unlimited. The Supreme Court rejected tax exempt status for a private religious university that had racially discriminatory practices. The Supreme Court has held that the government's enforcement of neutral and generally applicable laws, not designed to limit religious expression are generally well-insulated from challenge. A more stringent "strict scrutiny" test pursuant to the 1993 Religious Freedom Restoration Act, and other cases may put a greater burden on the ACA. However, the government could still establish that despite burdens on religious expression, the ACA's mandate is nonetheless permissible because it furthers a compelling governmental interest of providing citizens healthcare, and the law's mandate on companies is a narrowly tailored measure to achieve that interest -- something the companies will vigorously protest when oral arguments are presented in 2014. A decision should come by June.

Note: Brian Levin is a graduate of Stanford Law School, where he was awarded the Block Civil Liberties Award and is the author of Supreme Court briefs on the First Amendment.