At least three dozen lawsuits have been filed by private businesses challenging, on religious grounds, the new health care law's requirement that most company health plans provide no-cost coverage of contraceptives. The lawsuits share a basic flaw: Profit-making corporations are not human beings capable of engaging in religious exercise to begin with.
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The United States Court of Appeals for the Third Circuit recognized that fundamental reality last week when it allowed the contraceptive coverage rule to apply to a Pennsylvania-based cabinetmaking company, the Conestoga Wood Specialties Corporation. Conestoga, a 950-worker company owned by a devout Mennonite family, had argued that the federal mandate violated the company's rights under the Constitution and the Religious Freedom Restoration Act.
There is a line of Supreme Court decisions upholding corporate free speech rights. However, as the appeals court observed, there is "a total absence of case law" (before the present round of litigation) to support the notion that the "personal right" of free exercise of religion protected by the First Amendment applies to artificial creations like corporations.
"We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself," Judge Robert Cowen wrote in the panel's majority opinion. "A holding to the contrary — that a for-profit corporation can engage in religious exercise — would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners." The court might have added that to rule the other way would restrict the rights and risk the well-being of female employees who do not share the owners' religious views.
The Conestoga decision conflicts with a recent ruling by the United States Court of Appeals for the 10th Circuit, in Denver, in a similar case brought by the owners of a craft store chain, Hobby Lobby. This means that the issue could well reach the Supreme Court in the coming term.
The fact is that almost all women of childbearing age use some form of contraception, as a matter of independent choice, whatever their religious identity. In that sense, the legal assault against the contraception mandate amounts to an attempt by religious groups and individuals to hijack the courts to fight a social reality they do not like, brandishing overwrought claims of religious infringement. The Third Circuit was right not to go along.
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