Wall Street Journal Discovers A Love For An Evolving Constitution In The Wake of Hobby Lobby Arguments
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After the Supreme Court heard arguments in the legal challenge to contraceptive coverage under the Affordable Care Act (ACA), The Wall Street Journal's editorial board was quick to celebrate by pushing tired myths about the case and encouraging the judicial creation of new rights for corporations.
On March 25, the Supreme Court heard Sebelius v. Hobby Lobby, a case that could allow secular, for-profit corporate employers the ability to deny their employees preventive health insurance coverage based on their owners' religious objections. The owners of Hobby Lobby, the Green family, identify as conservative Christians who oppose some forms of birth control that they have decided -- in the face of scientific evidence to the contrary -- cause abortions.
Right-wing media have relished this opportunity to reject reproductive rights and come out in support of the Green family and Hobby Lobby. In their first editorial since oral arguments, the WSJ's editors were predictably pro-Hobby Lobby, calling the Obama administration's argument that a for-profit, secular corporation is incapable of religious belief "remarkable":
[T]he Administration's remarkable argument is that if a business is incorporated and for-profit, it forfeits normal constitutional rights. Hobby Lobby is a chain of craft stores that is a closely held, family-run corporation that tries to operate in accord with biblical principles.
Trying to distinguish between for-profit and nonprofit corporate forms for this regulatory purpose is constitutionally unprecedented. Corporations are often treated as "persons" for legal purposes, such as protecting free speech, and prosecutors can indict entire corporations for breaking laws. As Chief Justice John Roberts observed, minority-owned businesses can bring racial discrimination lawsuits. So why can't Christian- or Muslim-owned businesses exercise religion? Solicitor General Donald Verrilli had no good answer.
Liberal Justices rolled out a parade of dubious hypotheticals, arguing that if a business can invoke religion to refuse to pay for abortifacients, couldn't it also refuse to pay for blood transfusions or vaccinations? "Could an employer preclude the use of those items as well?" asked Justice Sonia Sotomayor in the day's first question.
Yet no one is "precluding" anything. Contraception is cheap, plentiful and covered by most health plans. Most corporations are run for profit, not piety. Mr. Verrilli claimed the mandate is necessary to promote public health and gender equality, but HHS could have aided those goals without forcing a minority of business owners with moral aims to implicate themselves in what they consider to be grave moral wrongs.
But the fact that "most health plans" cover contraception is precisely the point, just not in the way the WSJ thinks.
Through the Affordable Care Act, Congress created a new right for health care consumers -- the right to have crucial health services covered by American health insurance plans without cost-sharing. Hobby Lobby and its right-wing supporters are trying to take away this statutory right from female employees, denying them the ability to realize Congress' legislative determination that "most health plans" cover all preventive services, including contraceptives. The WSJ is reminding women of a huge new universal benefit, while strangely trying to explain that taking this benefit away should be reassuring.
WSJ is also confused about the role the distinction between "for-profit and nonprofit corporate forms" play in this case. Jumping on the new right-wing media narrative that the distinction between the two is irrelevant when it comes to so-called contraceptive mandates ignores the fact that these laws -- and the distinction -- have been passed into law across the country for years, and have been repeatedly upheld. Furthermore, rhetorically asking why the administration cannot extend the religious exemption to secular, for-profit corporations demonstrates a misunderstanding of what an exemption is.
If the exception applies to everyone, it completely swallows the rule -- that's why the distinction between "for-profit and nonprofit corporate forms" must be made.
As Justice Elena Kagan warned during yesterday's oral arguments, "[s]o one religious group could opt out of this and another religious group could opt out of that and everything would be piecemeal and nothing would be uniform." She later explained that Hobby Lobby's desire to collapse the corporate distinction between religious nonprofits and secular for-profits "would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard. So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws."
In over 200 years of First Amendment and corporate law, secular, for-profit corporations have never been able to wield the constitutional free exercise of religion in this way.
It is not the government's argument that is "remarkable," but rather that of the WSJ and Hobby Lobby. A corporation is a legal entity, specifically designed to keep its owners separate from the business. The WSJ, however, thinks the conservative justices "certainly should" breathe this new interpretation of corporate personhood into the Constitution.
Right now, the immediate threat may be to the thousands of employees of Hobby Lobby and Conestoga Wood, whose health plans may soon deny them no-cost coverage of these contraceptives, but as Kagan explained, the ramifications could affect everyone. Whether or not the rest of working America share the religious beliefs of their bosses is apparently beside the point for the WSJ.
WSJ's characterization of contraception as "cheap" is also misleading at best, especially since the most common forms of long-term birth control are among the most expensive, including those ones challenged by Hobby Lobby. According to the amicus brief filed by the Guttmacher Institute in support of the government, "cost is a major factor in determining which contraceptives women choose. ... Initiating use of an implant or IUD can cost a month's salary for a woman working full time at minimum wage." When cost is not a barrier to access -- the specific right granted by the ACA -- women are more likely to choose long-lasting contraceptive methods.
Another recent study suggests that the majority of women who participated chose IUDs or implants over the pill or patch when offered at no cost. It should delight the WSJ to know that long-lasting contraceptive methods actually significantly reduce unintended pregnancies and the need for abortions. But Hobby Lobby doesn't want to provide coverage for IUDs in particular, because they erroneously believe that the IUD itself is an "abortifacient" -- a right-wing media myth that some of the justices embraced as true.
It's too soon to know how the Supreme Court will rule in this case, but hopefully, unlike the WSJ, it will rely on the facts.