• More religious objections to contraception coverage

    I wrote last week that corporations might have First Amendment or RFRA religious rights to object to contraception coverage. Now we have a second federal judge agreeing, this time on behalf of Tyndale Bible Publishers (complaint here; preliminary injunction here). The short answer:

    The plaintiffs have therefore shown that the contraceptive coverage mandate substantially burdens their religious exercise.

    The Tyndale opinion again focuses on the rights of the owners of the company (here, a family foundation) rather than the company itself:

    This Court, like others before it, declines to address the unresolved question of whether for-profit corporations can exercise religion within the meaning of the RFRA and the Free Exercise Clause. See, e.g., First Nat’l Bank v. Bellotti, 435 U.S. 765, 777–78 n.14 (1978) (recognizing that corporations have First Amendment speech rights, but declining to “address the abstract question whether corporations have the full measure of rights that individuals enjoy under the First Amendment”); Stormans, Inc. v. Selecky, 586 F.3d 1109, 1119 (9th Cir.2009) (“We decline to decide whether a for-profit corporation can assert its own rights under the Free Exercise Clause …”); Church of Scientology of Cal. v. Cazares, 638 F.2d 1272, 1280 n.7 (5th Cir.1981) (same). Instead, the Court will assess whether Tyndale has standing to assert the free exercise rights of its owners…

    Viewing the rights of Tyndale’s owners (in particular, those of the Foundation) as the basis for its RFRA claim, the Court finds that Tyndale has made a satisfactory showing of Article III standing.

    The court also found “third party standing”

    It bears emphasizing that if the Court accepted the defendants’ position, no Tyndale entity would have standing to challenge the contraceptive coverage mandate—not even the Foundation. This is because, in the defendants’ view, Tyndale—though directly injured by the regulation—cannot exercise religion, and the Foundation—though capable of exercising religion—is not directly injured by the regulation. The third-party standing doctrine serves to avoid such conundrums.

    These cases are serious, but the threat is to mandatory contraception coverage, not the entire ACA.



    • A little economics is helpful in this debate. It’s important to remember that at the end of the day, the employers are not the ones paying for the contraception coverage. Insurance premiums come out of workers’ wages. So, the actual contraception payments don’t come out of the religious organizations’ budget. It comes out of the wallets of their workers.

    • Love the slippery slope! So many religions, so many things that are prohibited. No medical procedures on ANY holy day – Sunday, Saturday, Friday, ALL religious holidays. No electricity or motors or technology. No procedures (e.g. vaccines and almost all pharma) resulting from the killing of any animal. Strict separation of the sexes, medical professionals and patients. Medical personnel and patients not appropriately dressed or “untouchable”. All medical facilities have to be designed in accordance with feng shui and then blessed by the correct shaman. And that’s before the next religion is invented.

      Permitted procedures – bleeding and cupping and maybe a few poultices.

      • And if it weren’t so depressing, it would be funny. They are trying to use the government to enforce religious mandates. What happens when an employee asserts that their religion actually mandates coverage?

        Perhaps these companies should give their employees money to buy coverage as they see fit. That should solve the problem. Of course, then they would lose a method of controlling their employees.

    • Corporations are not people. Companies are not people.
      People have the right to free speech and freedom of religion.
      Corporations have no such right.

      Interesting editorial in today’s NYT regarding this subject:

    • As I recall, SCOTUS just told us that the penalties to individuals and employers for failure to comply with ACA insurance requirements are taxes.

      Historically, it has been the tradition of our government that while individuals cannot be forced to engage in actions that violate their religious conscience, they are required to pay to support actions by the government that may violate their individual conscience.

      Quakers pay to support the military. Christian Scientists pay the Medicare tax. Religious groups that oppose education of girls and coeducation pay to support coed schools. Etc, etc.

      It seems to me that businesses can be held to account for government mandates for financing birth control, a mandate easily justified both on financial and health grounds. They cannot have birth control pills forced down their throats, but if the government, including a vast majority of Catholic voters, supports that mandate, they can be forced to pay the tax — or choose the insurance — that supports it.