How a Radical Argument About the Birth Control Mandate Went Mainstream

The law, lawyers, and the court.
Nov. 26 2013 2:32 PM

Obamacare and Religion and Arguing off the Wall

What the New York Times and the courts are missing in the birth control mandate fight.

Hobby Lobby, Scotus, and Contraception
Hobby Lobby—mainstreaming arts, crafts, and a corporation's right to religious freedom.

Photo illustration by Lisa Larson-Walker. Photos by Shutterstock

The Supreme Court just agreed to hear a case challenging the requirement that most employers provide contraceptive coverage in their employee health insurance plans. On the front page of Monday’s paper, the New York Times previewed one of the two cases the justices have agreed to hear: Sebelius v. Hobby Lobby Stores Inc. At issue is whether for-profit corporations can have rights of religious conscience.

Surprisingly, the Times’ coverage was badly lopsided in favor of the rights of corporations. Constitutional arguments that were only recently considered “off the wall” are apparently moving into the mainstream media. We saw this process at work during the last legal challenge to Obamacare, when unprecedented arguments from conservatives eventually came to be accepted by many justices on the Supreme Court. It could be happening again, and it all begins when serious newspapers accept flawed legal arguments uncritically.

The precise question before the court is whether for-profit corporations can claim a religious freedom exception to the contraception mandate—the requirement under Obamacare that employers offer contraception coverage as part of health insurance for their employees. Exceptions already exist for religious organizations, for certain religiously affiliated nonprofits, for grandfathered employers, and for profit-seeking corporations with fewer than 50 employees. But no such exception exists for large companies. As a result, some corporations controlled by owners with religious objections to contraception have sued, contending that religious freedom laws exempt them from the contraception mandate.

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The leading case, and the one featured by the New York Times, involves Hobby Lobby, an arts and crafts chain with more than 500 stores and roughly 13,000 employees of various faiths. A closely held corporation, Hobby Lobby is owned and operated by the Green family, whose members believe that their Christian faith prohibits the company from facilitating contraception coverage for people who work there.

The New York Times article focuses on a lower-court opinion in Hobby Lobby’s case. There, the majority held that corporations have rights of religious conscience. Both that court and the Times emphasize similarities to the Supreme Court’s controversial decision in Citizens United, which held that corporations have free speech rights. Actually, however, the Hobby Lobby court is in the minority: Of the five federal appeals courts that have ruled on the possibility of corporate religious liberty, three have rejected the idea.

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