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On Tomorrow’s Roberts Court Atrocity Today


The Supreme Court granted cert in two of the specious legal challenges to the ACA’s contraceptive mandate, and I’m not particularly optimistic.

One point I want to emphasize is that contraceptive coverage is earned, not “free”:

One argument that has been made again and again by supporters of the legal challenges is that the religious consciences of employers are being burdened so that employees can get “free” contraception. But this is an erroneous argument that misapprehends the basic concept of employer-provided health insurance. Contraception provided by health insurance isn’t “free,” it’s earned. Companies get substantial taxpayer subsidies for partly paying employees in health insurance instead of cash. In exchange, this insurance has to be comprehensive enough to provide value to the employee. Women getting basic health-care needs covered by insurance they’re receiving as compensation are not receiving any kind of free ride.

This point underscores just how weak the legal challenge to the mandate is. The employers in question are claiming that there’s a major religious freedom issue at stake depending on whether employees obtain contraception through direct wages or through the insurance employers get tax benefits for paying employees with instead. But there isn’t. The “burden” imposed by the mandate is utterly trivial, and the argument that it violates RFRA should be rejected by the Supreme Court.

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  • postmodulator

    Is the theory that corporations, as people, have religious freedom which must be protected?

    Is the logical extension for the Wal-Mart corporation to convert to Christian Science, then claim that paying for any modern health care would violate their religious principles?

    • Glenn

      It’s interesting, in the Hobby Lobby case, the 10th Circuit did, in fact, hold that corporations are “persons” capable of exercising religious rights under RFRA and the First Amendment. If you read the respondent’s reply to the government’s cert petition, however, it mostly refers to the rights of “Hobby Lobby and its owners”. I think even Paul Clement recognizes the difficulty in asserting that corporations can “exercise religion”. Will be interesting to see how he argues it.

      • Jeremy

        It’s no more difficult than asserting that a corporation can express political beliefs, yet the Supreme Court had no trouble agreeing with that premise. Based on Citizens United, it’s not a stretch to say that a corporation can exercise religion.

        • Jeremy

          It probably goes without seeing that I disagree with the idea that a corporation can express political beliefs or exercise religion, but if you accept one premise I don’t think it’s a stretch of logic to accept the other.

          • Jeremy


        • Glenn

          I actually see numerous distinctions, though I don’t disagree that the Supreme Court may not. One is, a corporation indisputably has interests — economic, mostly — that free speech/advocacy may serve to protect. But asserting that a corporation has religious interests is pretty bizarre. Second, the free speech clause is not only about personal expression, it is about protecting public discourse, and one could not irrationally take the position that protecting corporate speech furthers that (though that is obviously highly debatable). Free exercise is more of a personal issue (though I’m sure one could make a similar “public good” type of argument re religious exercise).

          • Jeremy

            I understand your points, and I largely agree. My view is that since a corporation is nothing but pieces of paper, it cannot hold political views as such, so they have nothing to express. As a result, I think it would be better if the First Amendment were viewed as protecting only human rights, not corporate rights. It is certainly true, though, that the corporation can be economically benefitted by certain forms of advocacy, so there is at least a real interest being protected in Citizens United. And although I would disagree that limiting corporate campaign donations meaningfully hurts public discourse, I can understand how someone would disagree.

            Unfortunately, I think the Supreme Court has anthropomorphized corporations to the extent that they will have no trouble seeing them as “persons” that hold both political and religious views.

          • Scott Lemieux

            As I say, while Citizens United is problematic in many ways it’s obvious that there are some respects in which the free speech clause applies to corporations. Free exercise is a different kettle of fish entirely.

            • mpowell

              What are the ways in which it is obvious that the free speech clause applies to corporations? Something based on the text of the 1st amendment? In my opinion the amendment cannot be interpreted to provide much more than minimal guidance. It’s up to the courts to decide whether burdening speech by entities formed through government sanctioned financial deals is an acceptable restriction on public speech.

              • Malaclypse

                In what meaningful way can a corporation do things identifiably religious? Can they pray? Be baptized? Seek salvation?

                • MAJeff

                  Control women, discriminate against gays…sounds like a reasonable facsimile of many religious groups.

                • Sev

                  Surely there is an S and P 500 in Hell. Either that or Erik has been defaming these good souls.

                • Pat

                  Let’s say that I’m kosher, or Muslim, and I run a large, public business – can I force my employees to forgo bringing pork into the workplace? Because I don’t want my workplace to become unclean in the eyes of God.

                  How would that concern be different from Hobby Lobby’s?

              • stepped pyramids

                Freedom of the press would seem to naturally apply to at least some corporate entities, unless we expect all newspapers to be operated by sole proprietors.

              • Steph

                The NYT and the company that owns it obviously have free speech rights.

                That fact didn’t use to mean that we can’t ever distinguish between actual people and corporate persons, however.

                • cpinva

                  “That fact didn’t use to mean that we can’t ever distinguish between actual people and corporate persons, however.”

                  interestingly, since the inception of the federal income tax, congress has made it a point to clearly distinguish between corporate entities and “persons”. it took the Roberts court to shatter that which had been given law.

            • Jeremy

              My position is still that it is equally impossible for a corporation to hold political beliefs as it is for a corporation to hold religious beliefs. It is equally impossible for a corporation to be a Republican as it is for the corporation to be a Christian. The owners or board members may be religious or political, but the corporation itself is not and cannot be.

              A corporation is nothing but pieces of paper. The individual human beings in any corporation should and do have protected rights of political speech and exercise of religion, but it defies facts and logic to extend those rights to the corporations themselves.

              Thus, I don’t think for-profit corporations should have any protected right to make political donations, just as I don’t think for-profit corporations should have any protected right to exercise religion.

              Although again, with all of that being said, if we accept that Hobby Lobby has a protected right to express its view that contraception is evil, and to use its money to support candidates who will outlaw contraception, I don’t see it as a stretch to conclude that the corporation has a right to act on its supposed “beliefs” and refuse to cover contraception. The problem is that Hobby Lobby should not have a protected right to do any of these things. But in the current Supreme Court, when the rights of a corporation clash with the rights of human beings, the corporation wins every single time.

              • Hogan

                My position is still that it is equally impossible for a corporation to hold political beliefs as it is for a corporation to hold religious beliefs.

                But it is entirely possible for a corporation to have political interests, and they’re entitled to speak in order to advance those interests.

                It is equally impossible for a corporation to be a Republican as it is for the corporation to be a Christian.

                Those are not, by the way, good examples of political beliefs. Commitments, maybe.

                • cpinva

                  “But it is entirely possible for a corporation to have political interests, and they’re entitled to speak in order to advance those interests.”

                  I must vigorously disagree. the corporate entity is simply a legal fiction, granted by the state. it, by itself, is nothing but a chimera, having no feelings, thoughts or interests. the owners (shareholders), on the other hand, do (unless those sh’s are also corporations).

                  to assert that a legal fiction is, somehow, possessed of human qualities, which must be respected, is absurd. not that that ever stopped the courts, but there it is.

                • Steph

                  In Austin v. Michigan Chamber of Commerce (1990), Rehnquist (of all justices) dissented with the following, which I find quite sensible:

                  This Court decided at an early date, with neither argument nor discussion, that a business corporation is a “person” entitled to the protection of the Equal Protection Clause of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U. S. 394, 118 U. S. 396 (1886). Likewise, it soon became accepted that the property of a corporation was protected under the Due Process Clause of that same Amendment. See, e.g.,Smyth v. Ames, 169 U. S. 466, 169 U. S. 22 (1898). Nevertheless, we concluded soon thereafter that the liberty protected by that Amendment “is the liberty of natural, not artificial, persons.” Northwestern Nat. Life Ins. Co. v. Riggs, 203 U. S. 243, 203 U. S. 255 (1906). Before today, our only considered and explicit departures from that holding have been that a corporation engaged in the business of publishing or broadcasting enjoys the same liberty of the press as is enjoyed by natural persons, Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 244 (1936), and that a nonprofit membership corporation organized for the purpose of “achieving . . . equality of treatment by all government, federal, state and local, for the members of the Negro community” enjoys certain liberties of political expression. NAACP v. Button, 371 U. S. 415, 371 U. S. 429 (1963).

                  The question presented today, whether business corporations have a constitutionally protected liberty to engage in political activities, has never been squarely addressed by any previous decision of this Court. However, the General Court of the Commonwealth of Massachusetts, the Congress of the United States, and the legislatures of 30 other States of this Republic have considered the matter, and have concluded that restrictions upon the political activity of business corporations are both politically desirable and constitutionally permissible. The judgment of such a broad consensus of governmental bodies expressed over a period of many decades is entitled to considerable deference from this Court….

                • JustRuss

                  +1 to what cpinva said. Corporate executives are free to exercise their right to free speech, but there’s no reason for a corporation to have such rights. The $upreme Court disagrees, obviously.

            • mch

              Could I (a complete amateur on legal issues) ask here a question that has been bugging me? Why continue on the tack of the questions raised here (and by litigants thus far)? Why not ask this question: Didn’t the persons who incorporated as Hobby Lobby have the right NOT to incorporate? No one forced them to. They chose to seek to be recognized as a corporation because of particular benefits that they thereby acquired. Their incorporation derives from the state, which serves a larger society that also benefits from incorporation as a practice. But the state (that is, we the people) is the authorizing agent. You want out of a system that will impinge on your (the persons who form a corporation) exercise of your religious beliefs? Dissolve yourselves as a corporation.

              Incorporation is not a right. It is a status conferred by the state. Personhood is a status not conferred by the state, and it entails rights prior to the state.

              Am I nuts?

          • Stan Gable

            But asserting that a corporation has religious interests is pretty bizarre.

            I think they’re asserting that it’s proper that the owners be able to use the corporation as a vehicle to exercise their own beliefs not that the corporation has beliefs itself.

            Non-profit corporations work this way – basically as a tool to expand on their beliefs and they believe that for-profits should be allowed to work the same way.

            • Josh G.

              But for-profit corporations are not supposed to be the alter egos of their owners. In fact, if they act that way in the economic realm (commingling funds, for instance), the corporate veil can be pierced and they can lose their limited liability protection.

              • Stan Gable

                Yeah, I agree with this – my limited understanding is that non-profits have a different set of obligations and benefits than for-profits and that Hobby Lobby is trying to get the non-profit set of obligations while keeping the for-profit set of benefits.

                So if you did this, then any corporation that didn’t declare a religion would be at a competitive disadvantage. This should then create incentives for corporate boards to religion shop in order to minimize their current set of obligations – a total mess.

                • rea

                  create incentives for corporate boards to religion shop in order to minimize their current set of obligations

                  They’ll all convert to Islam and refuse to pay interest on their loans . . .

            • Anna in PDX

              Yes, but their beliefs always end where their employees’ individual rights according to law begin. This is not hard to understand.

        • Stan Gable

          I don’t think it’s the same thing – we don’t think there’s anything that unusual about companies employing lobbyists so as a non-legal matter, jumping from their to direct contributions isn’t that difficult.

          This strikes me as a different matter – if the SC rules in favor of Hobby Lobby then you’d see a parade of companies show up in court seeking religious exemption from all sorts of daffy things – general insurance provisions, minimum wages, environmental laws etc. I think they’d basically need to create a new class of corporations.

        • Tybalt

          But corporations express things all the time. What they don’t do, is have beliefs, especially about religion, especially not the religious beliefs that are mooted in Hobby Lobby, especially because they ain’t godly any more than a shoe or a dog or the concept of suzerainty.

          • Pat

            If I believe that dogs are unclean in the eyes of Allah, could I ban service animals?

        • Brien Jackson

          That rather does seem like a stretch, actually, as corporations (as an institution, anyway), can clearly have “opinions” about what policies and policy changes are in its best interests and therefore logically favor them, in the same way political action groups have opinions and favored policies. So, similar to this, a corporation could logically be for reducing the minimum wage to cut labor costs. But the religious aspect is clearly illogical, and is ultimately only functioning as a silly argument for why laws on paying workers shouldn’t apply here.

      • Joe

        Ah. The hero of the forces of wrong is on the case!

    • Karen

      It would be the end for women’s rights entirely, since so many churches teach that women should not have any public role. It follows that firing all married women is perfectly okay.

    • rea

      Well, it’s not a First Amendment issue, the caselaw on that favors the government’s position (neutral laws of general application, Justice Scalia explained in a majority opinion, aren’t trumped by religious freedom). It’s an RFRA issue.

      It’s mildly amusing to see how the right was all in favor of punishing Native Americans who use mescaline in a religous ceremony, but is shocked, shocked that devout corporations might have to pay for contraception.

      • Josh G.

        I don’t see why the RFRA is even relevant. Later laws supersede earlier laws at the same level of sovereignty, even if the later law doesn’t explicitly say this.

        • Glenn

          Well, one issue is that, IIRC, the ACA itself does not mandate contraception coverage; it’s an exercise of regulatory authority by the Obama administration.

        • Glenn

          The other issue is that RFRA expressly states that it applies to all later-passed federal statutes unless those statutes expressly exempt themselves from RFRA’s application. I realize that presents a rather interesting question as to the extent to which one Congress can impose requirements for legislation by later Congresses, but I would guess that the failure of a later statute (here, the ACA) to exempt itself from RFRA would be deemed an expression of (present) Congressional intent that RFRA applies.

          • efgoldman

            Why the hell did Clinton sign that POS?

            • Scott Lemieux

              Because it passed the House unanimously and the Senate 97-3?

              • cpinva

                “Because it passed the House unanimously and the Senate 97-3?”

                no, that couldn’t possibly be the reason. most likely, someone had evidence that he and Hillary had murdered the entire population of Hope, AR, so he was blackmailed into it.

              • rea

                And because if Anton Scalia writes a majority opinion rewriting the law of religious freedom, isn’t your natural instinct to approve a law repudiating his decision? Nobody was thinking ahead to the ACA–everyone was concerned to stop religious persecution of Indians.

                • It wasn’t persecution. Scalia was right.

              • (the other) Davis

                Under Roberts court logic, isn’t that evidence that RFRA is itself unconstitutional?

  • Joshua

    If employers can mandate what employees do with their health insurance, why shouldn’t they also be able to mandate what employees do with their paychecks?

    • Anna in PDX

      Exactly. We earn compensation because we perform work. I just don’t get that employers think they can dictate how we use our earned benefits any more than they should be able to dictate how we use our paychecks. We are not serfs.

      • postmodulator

        Is next: company scrip.

        • J R in WV

          There’s a great idea from the 1900s. Pay people in faux money they can’t spend anywhere but at the company’s businesses.

          Brilliant! Make them pay for their tools and materials, too. And sharpening the picks!

          This is why we need unions for everyone! To stop companies from returning to the personnel techniques of the 1900s!

        • thebewilderness

          That was my thought too. Paid by debit cards that they charge a fee each time you use and that are only good at other religious employer’s establishments.
          No more women in the workplace either.

      • Linnaeus

        We are not serfs.

        Which, from the point of view of some, is exactly the problem.

    • Glenn

      As meritless as the challenge to the regs is (IMO), I’m afraid I don’t really see this argument. Employers don’t provide you with some fungible medium of exchange called “insurance” that you can then use any way you want, without limitation. Every employer provided plan insures you against certain risks and not others. In other words, employers always tell you “what you can do with your insurance.”

      • Hogan

        No, insurance regulators tell insurance what the minimum standards are, and employers choose from among plans that meet the minimum standards (or they don’t offer insurance). Those standards now include contraceptive coverage.

        • Glenn

          Yes, I get it, thanks. The argument I was responding to was that employers should never be able to “tell employees what to do with their insurance.”

          • Anna in PDX

            But, they should not be able to be exempt from laws that provide employee benefits. Once the law is there and the employee may or may not need that particular kind of coverage I do not see how they have a leg to stand on. And the benefit is still earned.

            • Glenn

              I fully agree, and am pretty sure I never suggested otherwise.

          • Joshua

            Just because my plan has contraception coverage doesn’t mean I have to use it. it’s a standard benefit as defined by regulation, whether or not it gets used is none of my employers’ business any more than purchasing condoms at the store.

          • Hogan

            In other words, employers always tell you “what you can do with your insurance.”

            Yeah, no. That’s not mainly up to employers.

    • Anonymous

      What’s more religious than to fire employees for bearing The Mark of Cain, for example?

    • MAJeff

      They will try, they will try.

  • TT

    This point underscores just how weak the legal challenge to the mandate is.

    Yes, but what normal people consider to be a weak legal challenge a Highly Principled Originalist considers to be the height of Highly Principled Originalism.

    • TT

      I think it also goes without saying that in the unlikely event of a Wyden-Bennett style insurance reform ever coming to pass (i.e. the end of employer-guaranteed insurance in favor of a single giant individual pool) then the opponents of the contraceptive mandate would instantaneously switch gears and begin arguing that taxpayers should not be forced to provide a “free” service such as birth control that conflicts with their conscience.

      • postmodulator

        Tom Tomorrow’s response to this was always great: “The U.S. government does not offer satisfaction or your money back.”

        The flip answer was always to say “Yeah, well, the B-1 bomber conflicts with my conscience.” But there’s an actual argument there. We make Quakers pay taxes that go to the DOD.

        • MetalFace

          Honestly, how is that not the logical conclusion? If Hobby Lobby doesn’t have to pay for contraception, Quaker-owned businesses would be encouraged (and religiously obligated?) to claim exemption from any taxes that might go to fund wars. That and of course all corporations would convert to Christian Science.

          I suppose it’s because Quakers believe in community and community action, and southern evangelists focus on the personal expression of faith but boy that’s a tenuous thread there.

        • Snarki, child of Loki

          While I generally object to my tax money paying for B-1 bombers, I would count it as a fair exchange if I got to pick a target or two on the “drone strike” list.

          What could possibly go wrong?

    • burnspbesq

      Not this time. A true originalist, looking dispassionately at the state of the English common law at the time of the Founding, would find absolutely zero support for the idea that for-profit corporations can express religious beliefs.

      For the right, originalism is a tool, not a principle. When it’s not the right tool for the job, it will be set aside.

      • DrDick

        Like Scotsmen, there are no true originalists.

  • If corporations are people in all regards, why can’t they adopt children? And if those kids should happen to work, uncompensated, to the extent allowed by law for children working in family businesses, who’s to say that’s wrong?

    • DrDick

      I will believe they are persons when Texas executes one.

      • Snarki, child of Loki

        I’ll agree that corporations can have religious beliefs when the Pope excommunicates one.

  • tonycpsu

    This mess underscores how ridiculous tying healthcare to employment is. Were it not for the disruption that would be caused by eliminating the employer insurance tax expenditure, we wouldn’t have to have this conversation at all — we could just tell Hobby Lobby to let their employees hit the individual market. As things are now, the individual market is at a disadvantage because the employer market is so heavily-subsidized.

    • Anna in PDX

      Totally agree with this. Maybe Hobby Lobby can advocate for single payer so they won’t have to do this at all?

    • FlipYrWhig

      But, wait, hold on. If all insurance was administered by the government, there’d be no preventing the possibility of Republicans and anti-abortion Democrats from teaming up to eliminate all spending of public money on abortion, reproductive health, etc. The downside of Medicare For All is the prospect of Hyde Amendment For All.

  • gman

    I love that almost every post on this site can turn into a debate on..”How much the Dems suck v. did the Dems get the most that was politcally practical in the current environment”

    Yesterday was the filibuster..today is the healthcare version.

    Worthy topic…Chicken or Egg.

    Scott has been on both sides in two days.

    • JL

      Well, sometimes the Dems suck and sometimes the Dems get the most that’s politically possible in the current environment. It’s not like their effectiveness is some fixed constant. So of course the same people will sometimes think the Dems are being effective and sometimes think they’re sucking.

      As of my writing this comment, though, I don’t see that debate playing out at all on this post.

    • Fosco

      Those are not exclusive propositions. The dems can suck, and the political environment can fail to support progressive policy goals, both at the same time.

      • guthrie

        Heck, not even progressive goals, merely ones that a majority of americans want and would approve of, if actually offered to them.

    • Scott Lemieux

      Scott has been on both sides in two days.


      • Tybalt

        At first you were all up ons with the chicken, but now you’re like nuh-uh, I’ma go for some eggs.

        • Pat

          Like the old joke about the chicken and the pig negotiating with the farmer about their future on the farm…. and the chicken got the farmer to agree to eggs and bacon for a year.

    • I’m just happy you made the same comment on two different posts so that we could all understand how really bored you are of reading LGM.

      • Yes! It was so informative the first time, but the second time REALLY stimulated thoughtful disucussion!

    • efgoldman

      Scott has been on both sides in two days.

      And you have posted this same comment on at least two threads today.

      • Patrick Phelan

        That’s what you call CONSISTENCY.

  • brewmn

    On the one hand, I’m hoping that they took this case just to shut down this stupid line of attack against the ACA, since the lower court decisions conflict.

    On the other hand, I’m afraid that the rightwingers on the court, like the Republican Party, see the demographic tide coming in to wash their oligarchic, theocratic crap away, and are trying to entrench as much of it the law as possible, traditional standards of jurisprudence be damned.

    • CJColucci

      While it makes sense to be nervous, given this Court’s track record, granting cert. is exactly what should have been done. It’s a big, important issue with conflicting lower court decisions that has to be straightened out. Just what the Supreme Court is for.

  • Anonymous

    As depressing as the prospect of SCOTUS upholding the cherished “freedom of [corporations’ tax-deduction- driven health insurance plans to refuse to not charge copays for a subset of preventive services with clearly established health benefits, for the sole reason that sex = icky is an expression] of religion”… (pauses for breath)

    …one silver lining in this is that it may drive more people / companies away from employer-provided health coverage, and into, you know, decent plans. Which is a good thing overall, and a long-term goal of the ACA. And may be a good thing in the short run too: at some companies I worked for (and this was 15 years pre-ACA), I found the dent in my paycheck for health benefits was MUCH bigger than what insurers would charge me as an individual. I suspect that this happens a lot (young people at big corps subsidizing benefits for older workers), and that this gap will get even larger post-ACA. So if lots of young people flee shitty overpriced big corporate bennies for exchange plans that actually meet their healthcare needs, it may be a net plus. But it will still suck for those who need their corporate health benefits.

    • Another Holocene Human

      I’m just not feeling this. This sucks bawls. It’s a tax break for religious discrimination. They already got a bunch under Bush II.

      I always felt kinda copacetic, being born a Catholic in a mainline Protestant country. You could “follow your conscience” (or not) but the secular world was there if you needed it.

      Now the RCC has its tentacles in our legal system. Scary shit.

      Just look at what they did to Italy. Human misery on a massive scale. QE-fucking-D.

      I just hope we don’t have to go all Bruno to stop them.

  • Here in the UK, our Supreme Court today ruled that you can’t use religion to justify discriminating against people.

    I’m pretty certain they’d make a similar ruling if some religious group complained about the NHS using taxpayers’ money to hand out the Pill or condoms.

    • Rubbing our noses in it, eh? (For values of “it” equal to the right-wing assholes on our SC.)

      • Yep! ;-)

        Also we have the benefit of our Supreme Court – & Court system generally – not being riddled with politics.

    • Glenn

      Well, as rea points out above, our Supreme Court would seemingly not disagree with that position, as a matter of constitutional law. Scalia’s opinion in Smith makes it clear that you can’t assert religious objections to excuse you from generally applicable laws. The primary reason this is an issue at all is that Congress passed RFRA (thanks, among others, Chuck Schumer and Bill Clinton!).

      • Stan Gable

        I’m kind of amazed that a law passed to protect the rights of native americans to use mescaline can get turned into a tool to generally disembowel worker protections. Just sort of amazing…

      • To be honest, it’s very unlikely we’d pass something similar to the US RFRA :-)

        It’s so good to live in a country that doesn’t care about religion ;-)

        • cpinva

          “It’s so good to live in a country that doesn’t care about religion ;-)”

          no doubt the irish catholics will be happy to hear of this development.

      • MAJeff

        Yeah, but Scalia’s originalism doesn’t even apply to Scalia. He’ll take exactly the opposite position here.

  • cs

    I am not a lawyer, but I thought the result of the first Supreme Court ACA case was that the mandate was a tax and not a penalty. Doesn’t that mean employers have a choice to buy the required insurance or pay the “tax”. So if the required insurance is unacceptable to certain employers, they can pay the “tax”. Where is the (alleged) religious violation?

  • Tom Servo

    Contraception coverage?? Aaaaaaahhhh free exercise blah blah!!1 Legislative prayer? A-ok! Sometimes I think we should just deep-six First Amendment jurisprudence and start over. Not with this Court though.

    • Another Holocene Human

      The worst part about it is the whole push starts from a place of deep ignorance about human biology and more generally medicine and more specifically how different forms of birth control work.

      On wingnut-wurlitzer-victim at work asked me why women with PCOS couldn’t just take a “non-birth-control hormone pill”. Christ on a crutch.

      • Schadenboner

        This isn’t the worst idea I’ve heard. Instead of a contraceptive pill that happens to clear (and is sometimes RX’d off-label for) acne market it as an acne treatment that happens to prevent pregnancy?

        And I’m only half kidding.

        Of course, the usual gang of idiots would find a passage in their bible along the lines of “And yea verily I did look upon the whore of babylon and lo did her face appear free from spots”.

      • Tybalt

        Doesn’t matter, say the plaintiffs (and the majority of the 10th Circuit). It doesn’t matter what the science is, this is a question of FAITH!

      • Tom Servo

        Someone said that? Christ. You can’t be pro-life and anti-contraception. Well, you can be, and many people are, but it’s just not a position I can respect.

  • Tom Servo

    Since we’re talking about the First Amendment here, Scott: do you have any thoughts on Town of Greece v. Galloway (actually, much more difficult to get riled up about that one), or McCullen v. Coakley?

  • Joe

    I see the hero of the forces of wrong, Paul Clement, is involved (another comment noted this). Charming.

    This might be a matte of finding the narrowest defeat. Judge Janice Rogers-Brown did buy the corporation as RFRA rights person, narrowing things so only a limited number of claims will likely be possible. I think it pragmatic to accept that owners of corporations can at least have standing here. Then, point to U.S. v. Lee to help explain why they should lose on the merits.

    I hope for at best a loss I can live with and maybe a good partial dissent from Ginsburg or Kagan.

    • Joe

      I see the hero of the forces of wrong, Paul Clement, is involved (another comment noted this). Charming.

      This might be a matte of finding the narrowest defeat. Judge Janice Rogers-Brown did not buy the corporation as RFRA rights person, narrowing things so only a limited number of claims will likely be possible. I think it pragmatic to accept that owners of corporations can at least have standing here. Then, point to U.S. v. Lee to help explain why they should lose on the merits.

      I hope for at best a loss I can live with and maybe a good partial dissent from Ginsburg or Kagan.

  • Rob in Buffalo

    A ruling for the plaintiffs in this case would be — among other things — the definition of judicial activism.

    • cpinva

      “A ruling for the plaintiffs in this case would be — among other things — the definition of judicial activism.”

      no, by definition, “judicial activism” can only occur when a “liberal” judge/court upholds the rights of individuals. otherwise, it’s just solid jurisprudence.

  • FlipYrWhig

    Here’s something I’ve been thinking about, and maybe the regulars here can set me straight on this.

    Let’s say that it ends up that the Supreme Court finds that corporations have religious rights. I think that’s beyond absurd, but let’s say it happens.

    Even so, isn’t the ACA set up so that no company is compelled to do anything other than buy insurance policies? If an employee uses that insurance to do something the employer finds unconscionable, well, too freakin’ bad. The employer isn’t being forced to violate any religious views, because the purchase of insurance is not contrary to anyone’s religious views.

    I don’t see how the purchase of insurance that could then be used to fund something abhorrent to the employer is any more the employer’s business than the fact that the other part of the employee’s compensation, the paycheck, can also be used to fund something abhorrent to the employer. Jehovah’s Witnesses don’t like pledging allegiance to the flag, but a business run by Jehovah’s Witnesses wouldn’t be able to say that none of its employees could buy a flag because they might pledge allegiance to it. Companies run by Quakers pay taxes that fund war, and no one feels like that’s a terrible abridging of religious freedom.

    The whole thing is idiotic, but the particularly idiotic thing IMHO is that the basic complaint, to wit, that the company is being forced to violate its beliefs, falls apart not only on the idea that companies can have beliefs but ALSO on the idea that what the company is being forced to do has anything whatsoever to do with religious beliefs. It doesn’t. It just doesn’t, obviously, clearly, factually. Right?

    • Joe

      A claim made is that someone might wish to incorporate a business and should not be forced in return to be required to compensate their employees with an insurance package that includes something that violates their religious beliefs. In some tiny way, the owner’s conscience is being burden. Helping the person buy insurance to pay for Ella can violate it.

      The burden, however, is minimal — on the merits, there is no “substantial burden” and there also is a compelling governmental interest anyway. I don’t think it necessary to say there is no burden — it just is that when you run a corporate business for profit, the world is not just you.

    • Informant

      The employer isn’t being forced to violate any religious views, because the purchase of insurance is not contrary to anyone’s religious views.

      I can’t find anything immediately in Google searches, but I could swear that that some Christian sects have at least in the past considered insurance immoral because they viewed actuarial tables as being a form of ungodly prophesying.

  • Matt

    This could have some interesting knock-on effects: if a company being forced to buy insurance that then *might* get used to buy contraception is an “infringement on religious liberty”, than surely MY being required to pay taxes that then might be distributed to “faith-based” initiatives I disagree with is equally so.

  • J R in WV

    Please, a lawyer, speak up and refresh my memory. How many justices does it take to accept a case for consideration? My non-lawyer brain thinks 4 does the trick…

    Also, these justices are under no obligation to vote pro or con on the case they accepted, right?

    • Mark Field

      Yes, it’s 4. They can vote however they want on the merits.

  • Joseph Nobles

    So what this boils down to is an employer’s religious right to sit on an employee’s reproduction panel.

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