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CORPORATE CONSCIENCE AND THE CONTRACEPTIVE MANDATE: A DWORKINIAN READING

Published online by Cambridge University Press:  05 May 2015

Linda C. McClain
Linda C. McClain*
Affiliation:
Professor of Law and Paul M. Siskind Research Scholar, Boston University School of Law; Faculty Fellow, Boston University School of Theology, 2010–2014
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Extract

When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA), sadly missing in the flurry of commentary was Dworkin's assessment of the case. Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.

Keywords

contraceptionAffordable Care ActRonald Dworkinconscienceexemptionscorporationsreligious liberty
Type
BOOK REVIEW SYMPOSIUM: RONALD DWORKIN'S RELIGION WITHOUT GOD—A POSTSCRIPT ON DWORKIN'S LEGACY
Information
Journal of Law and Religion , Volume 30 , Issue 1 , February 2015 , pp. 136 - 160
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2015 

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References

1 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014) (hereafter Hobby Lobby).

2 Dworkin published essays in the New York Review of Books on the constitutionality of the ACA and on the Court's 5–4 decision upholding it in National Federation of Independent Business v. Sebelius, 132 S. Ct. 2566 (2102), but not on the ACA's contraceptive coverage provisions. Ronald Dworkin, “Why the Mandate is Constitutional: The Real Argument,” New York Review of Books, May 10, 2012, 4–8; Ronald Dworkin, “A Bigger Victory than We Knew,” New York Review of Books, August 16, 2012, 6–12.

3 Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

4 A bibliography of Ronald Dworkin's work on law and religion, including the works cited herein, is included with part one of this symposium. “Selected Law and Religion Writings of Dworkin, Ronald, Journal of Law and Religion 29, no. 3 (2014): 547Google Scholar. In a longer article evaluating Religion without God, I raise the exemption issue only in the concluding pages. McClain, Linda C., “Can Religion without God Lead to Religious Liberty without Conflict?,” Boston University Law Review 94, no. 4 (2014): 1273–1320Google Scholar (hereafter “Religious Liberty without Conflict”).

5 The Religious Freedom Restoration Act of 1993 (RFRA), 42 U.S.C. §§ 2000bb-1(a).

6 Hobby Lobby, 134 S. Ct. at 2754–55.

7 Ibid., 2781–82. The other two corporations were Conestoga Wood Specialties and Mardel. Unless discussing facts specific to one corporation, this essay refers to the three corporate plaintiffs as “Hobby Lobby” to avoid cumbersome references in the text.

8 Ibid., 2782.

9 Wheaton College, 134 S. Ct. at 2812 (Sotomayor, J., dissenting) (joined by Justices Ginsburg and Kagan).

10 Ibid., 2808–09, 2813.

11 For example, Little Sisters of the Poor Home for the Aged v. Sebelius, 6 F.Supp.3d 1225 (D. Colo. 2013), injunction granted 134 S. Ct. 1022 (2014), is currently pending before the Tenth Circuit on this issue. There are numerous lower court decisions pending in other circuits. For an overview see http://www.becketfund.org/hhsinformationcentral.

12 See Priests for Life v. U.S. Department of Health and Human Services, No. 13-5368, 2014 WL 5904732, at *40 (D.C. Cir. Nov. 14, 2014) (rejecting “all of Plaintiffs' challenges to the regulations”); Michigan Catholic Conference & Catholic Family Services. v. Burwell, 755 F.3d 372 (6th Cir. 2014) (affirming district court denial of preliminary injunction); and University of Notre Dame v. Sebelius, 743 F.3d 547 (7th Cir. 2014) (affirming district court's denial of preliminary relief). The Supreme Court denied the petition for certiorari in Priests for Life, 82 U.S.L.W. 3457 (U.S. March 3, 2014) (No. 13-891) and a petition is pending in the University of Notre Dame case, 83 U.S.L.W. 3220 (U.S. Oct. 3, 2014) (No. 14-392).

13 See Ronald Dworkin, “The ‘Devastating’ Decision,” New York Review of Books, February 25, 2010, 39; Ronald Dworkin, “The Decision That Threatens Democracy,” New York Review of Books May 13, 2010, 63–67.

14 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

15 I discuss the role of dignity in several of Dworkin's works in McClain, “Religious Liberty without Conflict.” Elsewhere I examine how, in Dworkin's magisterial Justice for Hedgehogs, human dignity is the basic concept from which flow conceptions of authenticity, self-respect, and responsibility. See McClain, Linda C., “Justice and Elegance for Hedgehogs—In Life, Law, and Literature,” Boston University Law Review 90, no. 2 (2010): 863–902Google Scholar.

16 See McClain, Linda C., “From Romer v. Evans to United States v. Windsor: Law as a Vehicle for Moral Disapproval in Amendment 2 and the Defense of Marriage Act,” Duke Journal of Gender Law & Policy 20, no. 2 (2013): 463–64Google Scholar (observing that one aspect of Justice Kennedy's opinion in U.S. v. Windsor, 133 S. Ct. 2675 (2013), is his “characteristic appeal to ‘dignity’ as he explains the injury that DOMA [the Defense of Marriage Act] inflicts on lawfully married same-sex couples”).

17 For arguments that elaborate on this “summary statement,” Dworkin directs readers to his other work (RwG, 144, 144n19).

18 494 U.S. 872 (1990).

19 The questions these issues raise include the following: If framed as a right to ethical independence, rather than a special right, does a religious person have a right to refuse goods and services to a same-sex couple because to do so, he or she argues, compromises the ability to define ethical values and live by those values? If a religious person is a public official, may he or she be free to refuse to issue a marriage license due to the burden on ethical independence? Might Dworkin support, as the Catholic Charities example suggests (RwG, 136), accommodation if providers of goods and services or even clerks exist in sufficient supply that lesbian, gay, bisexual, and transgender persons or same-sex couples would not experience injury? For a sketch of how the constitutional liberalism I advance would approach these conflicts, see Fleming, James E. and McClain, Linda C., Ordered Liberty: Rights, Responsibilities, and Virtues (Cambridge, MA: Harvard University Press, 2013), 146–77Google Scholar.

20 See Dworkin, “The ‘Devastating’ Decision”; Dworkin, “The Decision That Threatens Democracy.”

21 Dworkin, “The Decision That Threatens Democracy,” 64.

22 Dworkin, “The ‘Devastating’ Decision,” 39.

23 Dworkin, “The Decision That Threatens Democracy,” 63.

24 Ibid.

25 Ibid., 64 (quoting Citizens United, 555 U.S. at 466 (Stevens, J., concurring, in part, and dissenting, in part)).

26 Ibid. (quoting Citizens United, 555 U.S. at 340–41).

27 Ibid., 66.

28 Ibid.

29 All party and friend of the court briefs filed in Burwell v. Hobby Lobby Stores, Inc., 133 S. Ct. 641 (2014) (No. 13-354) and Conestoga Wood Specialties Corp. v. Sebelius, 134 S. Ct. 678 (2014) (No. 13-356) referred to in this essay may be found at http://www.americanbar.org/publications/preview_home/13-354-13-356.html. For the sake of brevity case information has not been included in citations. Unless otherwise indicated, the briefs are from the “merits” phase, not on the petition for certiorari. This essay samples, rather than exhaustively discusses, the eighty-five amicus briefs filed in Hobby Lobby. For a helpful website gathering and classifying these briefs, see, e.g., The Becket Fund for Religious Liberty, “Amicus History: Hobby Lobby Amicus Briefs Among Record Levels,” http://www.becketfund.org/hobbylobbyamicus/. Another useful website is http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/.

30 Hobby Lobby, 134 S. Ct. at 2765.

31 As noted earlier, I use “Hobby Lobby” here, unless otherwise specified, to refer to all three corporations challenging the ACA.

32 See Brief for the Azusa Pacific University et al. as Amici Curiae Supporting Neither Party at 15.

33 Ibid., 19.

34 Brief for the Council for Christian Colleges & Universities et al. as Amici Curiae Supporting Respondents Hobby Lobby, Mardel, and Petitioners Conestoga at 10.

35 Brief for the Reproductive Research Audit as Amicus Curiae Supporting Hobby Lobby et al. and Conestoga et al. at 8.

36 See Brief for the Association of Gospel Rescue Missions et al. as Amici Curiae Supporting Granting the Petitions (for certiorari) at 16–18.

37 See Brief for the Pacific Legal Foundation et al. as Amici Curiae Supporting Non-Government Parties at 3.

38 Brief of the Christian Booksellers Association et al. as Amici Curiae Supporting Hobby Lobby and Conestoga at 4–5.

39 Ibid., 5.

40 Brief for the United States Conference of Catholic Bishops et al. as Amicus Curiae Supporting Hobby Lobby and Conestoga et al. at 11–12.

41 Brief for the J. E. Dunn Construction Group, Inc. et al. as Amici Curiae Supporting Hobby Lobby Corp. et al. and Conestoga Wood Specialties Corp. at 8.

42 See Brief for the Cato Institute as Amicus Curiae Supporting the Hobby Lobby Respondents and the Conestoga Petitioners et al. at 3.

43 Brief of Pacific Legal Foundation, Reason Foundation, and Individual Rights Foundation at 19.

44 See Brief of Professor Emeritus of Law Charles E. Rice et al. as Amici Curiae Supporting Hobby Lobby Stores et al. and Conestoga Wood Specialties Corp. et al. at 20 (hereafter Rice Brief).

45 See Brief for Respondents at 30–31.

46 Ibid.

47 See Brief for the Thomas More Law Center as Amici Curiae Supporting Hobby Lobby and Conestoga et al. at 14, 16.

48 Brief of Pacific Legal Foundation at 24–25.

49 Brief for the Thomas More Law Center as Amici Curiae Supporting Hobby Lobby and Conestoga et al. at 12.

50 A full treatment of Dworkin's conception of the relationship between personal ethics and political morality is beyond the scope of this essay, but see Dworkin, Justice for Hedgehogs, 327–50, 377–401.

51 See Brief of Democrats for Life et al. as Amici Curiae Supporting Hobby Lobby and Conestoga et al. at 4.

52 Dworkin discusses U.S. v. Seeger, 380 U.S. 163 (1965).

53 Brief of Democrats for Life; see also The Brief of Constitutional Law Scholars et al. as Amici Curiae Supporting Hobby Lobby and Conestoga et al. at 4.

54 Brief of the Catholic Medical Association as Amicus Curiae Supporting Respondents at 12.

55 Brief of Women's Public Policy Groups et al. as Amici Curiae Supporting Non-government Parties at 5–6.

56 Ibid., 3, 18.

57 See Brief of the Ovarian Cancer National Alliance as Amicus Curiae in Support of Petitioners at 7–10 (hereafter Ovarian Cancer National Alliance Brief), emphasizing women's health and ability to prevent diseases such as ovarian cancer.

58 Brief of California et al. as Amici Curiae in Support of Petitioners at 14–15.

59 See Brief for Foreign and Comparative Law Experts Lawrence O. Gostin et al., supporting Petitioners in No. 13-354 and Respondents in No. 13-356 at 8, 16.

60 See Brief for Church-State Scholars et al. as Amici Curiae Supporting the Government at 6, 22.

61 Brief for the Center for Inquiry et al. at 17–18.

62 Ovarian Cancer National Alliance Brief at 10.

63 Petition for a Writ of Certiorari at 27, Burwell v. Hobby Lobby Stores, Inc., 133 S. Ct. 641 (2014) (No. 13-354) (quoting O'Brien v. HHS, 894 F.Supp.2d 1149, 1159 (E.D. Mo. 2012)).

64 Lambda Legal Defense and Education Fund, Inc. et al. as Amici Curiae Supporting the Government at 20.

65 Rice Brief at 29–30.

66 See Brief of Religious Organizations as Amici Curiae Supporting the Government at 34.

67 Roe v. Wade, 410 U.S. 113 (1973).

68 See Brief of Women Speak for Themselves as Amicus Curiae in Support of Hobby Lobby Stores, Inc. and Conestoga Wood Specialties et al. at 38–39.

69 Ibid.

70 Center for Inquiry Brief at 13 (quoting United States v. Lee, 455 U.S. 252 (1982)).

71 See, generally, Dworkin, Justice for Hedgehogs. For my engagement with these ideas, see McClain, “Justice and Elegance for Hedgehogs”; McClain, “Religious Liberty without Conflict.”

72 See, e.g., Dworkin, Ronald, “Foundations of Liberal Equality,” in The Tanner Lectures on Human Values, vol. 11, ed. Peterson, Grethe B. (Salt Lake City: University of Utah Press, 1990), 1–119Google Scholar.

73 For a few insightful examples, see Ira C. Lupu, “Hobby Lobby and the Dubious Enterprise of Religious Exemptions,” Harvard Journal of Law & Gender 38 (forthcoming); Gedicks, Frederick Mark and Koppelman, Andrew, “Invisible Women: Why an Exemption for Hobby Lobby Would Violate the Establishment Clause,” Vanderbilt Law Review En Banc no. 67 (2014): 51–66Google Scholar.

74 For further discussion, see Part IV, below. For an overview of pending federal litigation, see http://www.becketfund.org/hhsinformationcentral.

75 Hobby Lobby, 134 S. Ct. at 2759.

76 Ibid., 2779–80.

77 Ibid., 2781–82 (quoting 45 C.F.R. § 147.131(b)(4), (c)(1), (c)(2)).

78 Ibid., 2764–67.

79 Ibid., 2764, 2766.

80 Ibid., 2765.

81 Ibid., 2766.

82 Ibid., 2768.

83 Ibid., 2769.

84 Ibid., 2771.

85 Ibid., 2774.

86 Ibid.

87 See discussion in Part I, above.

88 Ibid., 2775.

89 Ibid., 2778.

90 Ibid., 2759–60.

91 McClain, “Religious Liberty without Conflict,” 1300–09. See also the essays by Carter, Stephen, Domingo, Rafael, and Jackson, Timothy that are collected in part one of this book review symposium discussing “Ronald Dworkin's Religion without God and the Challenge of Theistic Epistemology,” Journal of Law and Religion 29, no. 3 (2014): 510–46CrossRefGoogle Scholar.

92 Hobby Lobby, 134 S. Ct. at 2785 (Kennedy, J., concurring).

93 Ibid.

94 Ibid.

95 Ibid., 2786.

96 Ibid., 2787–88.

97 Ibid., 2788.

98 Justice Breyer and Justice Kagan did not join Part III-C-1 of Justice Ginsburg's dissent. They agreed with her that the plaintiffs' “challenge to the contraceptive coverage requirements fails on the merits,” and thus, “we need not and do not decide whether either for-profit corporations or their owners may bring claims under” RFRA. Hobby Lobby, 134 S. Ct. at 2806 (Breyer, J., and Kagan, J., dissenting).

99 Hobby Lobby, 134 S. Ct. at 2787 (Ginsburg, J., dissenting).

100 Ibid., 2787–88 (quoting Planned Parenthood v. Casey, 505 U.S. 833, 856 (1992)) (internal quotation marks omitted).

101 Ibid., 2788.

102 Ibid., 2789.

103 Ibid., 2789 and n.6 (citing Welsh v. United States, 398 U.S. 333, 357–58 (1970) (Harlan, J., concurring in result)).

104 Ibid., 2790.

105 Ibid.

106 Ibid., 2790–91 (quoting Zechariah Chafee, Jr., “Freedom of Speech in War Time,” Harvard Law Review 32, no. 8 (1919): 932, 957).

107 Ibid., 2793.

108 Ibid., 2794 (quoting Citizens United, 558 U.S. at 466 (Stevens, J., dissenting, in part)).

109 Ibid.

110 Ibid., 2794–95.

111 Ibid., 2796–97 (citation omitted).

112 Ibid., 2799.

113 Ibid.

114 Ibid.

115 Ibid. (sources omitted).

116 Ibid., 2800. This effectiveness is a key reason that Brookings Institution Senior Fellow and economist Isabel Sawhill has recently urged greater access to and more widespread use of the intrauterine device and other long-acting reversible contraceptives to address the high rate of uninintended (and often) unwanted pregnancies and births among young women in the United States. See Sawhill, Isabel V., Generation Unbound: Drifting into Sex and Parenthood without Marriage (Washington, DC: Brookings Institution Press, 2014), 122–26Google Scholar.

117 Hobby Lobby, 134 S. Ct. at 2801; see also Geddicks and Koppelman, “Invisible Women,” 51 (arguing that “‘religious liberty’ does not and cannot include the right to impose the costs of observing one's religion on someone else, especially in the for-profit workplace”).

118 Hobby Lobby, 134 S. Ct. at 2801 (citation omitted) (internal quotation marks omitted).

119 Ibid., 2801–02.

120 Ibid., 2802 n.25 (citing United States v. Lee, 455 U.S. 252, 259 (1982)).

121 Ibid., 2802.

122 Ibid., 2803.

123 Ibid., 2803 and n.27.

124 Ibid., 2804–05 (citing United States v. Lee, 455 U.S. 252 (1982)).

125 Ibid., 2804.

126 Ibid., 2805. In Elane Photography, LLC. V. Willock, 309 P.3d 53 (N.M. 2013), the photography business owner lost her appeal of a ruling that her refusal violated state antidiscrimination law, which included a public accommodations provision barring discrimination in provision of goods and services.

127 Hobby Lobby, 134 St. Ct. at 2805–06 (citation omitted).

128 Wheaton College v. Burwell, 134 S. Ct. 2806 (2014).

129 Ibid., 2807.

130 Priests for Life, 2014 WL 5904732, at *1 (quoting Catholic doctrine that contraception is a “grave sin”); Little Sisters of the Poor, 6 F. Supp. 3d at 1128 (reporting testimony that all forms of contraception are “gravely contrary to moral law” and “intrinsic evils”).

131 Wheaton College, 134 S. Ct. at 2808.

132 Ibid.

133 Ibid., 2809.

134 Ibid.

135 Ibid., 2812 (citing Hobby Lobby, 134 S. Ct. at 2798 (Ginsberg, J., dissenting)).

136 Ibid. (discussing Notre Dame, 743 F.3d at 556).

137 Ibid.

138 Notre Dame, 743 F.3d at 556.

139 Wheaton College, 134 S. Ct. at 2812.

140 Priests for Life, 2014 WL 5904732, at *16.

141 Ibid., *10.

142 Notre Dame, 743 F.3d at 552, 559 (internal quotation marks omitted).

143 All the circuit court opinions emphasize that this is a “de minimis” burden. See also Little Sisters of the Poor, 6 F. Supp. 3d at 1235 (estimating it would take fifty minutes for an employer to fill out the form).

144 Priests for Life, 2014 WL 5904732, at *29.

145 Ibid., *26.

146 Dworkin, “A Bigger Victory than We Knew.”