Monday, August 4, 2014

Conservative Commentary on the Recent United States Supreme Court Term, Part II

On one of my posts on Independence Day, I analyzed several cases on interests to conservatives that advanced liberty or good government in Part I of this two-part series.  This post is devoted to the last such decision announced by the Court, in which it ruled that the federal government cannot force closely-held corporations to violate their religious beliefs to provide insurance coverage that includes abortifacients.

            The plaintiffs, two Protestant Christian corporations, objected to an Obama Administration regulatory mandate imposed under the federalization of health insurance (“Obamacare”) that required them to provide insurance benefits that included certain contraceptives that also are abortifacients.  Their owners do not object to contraception, but to certain contraceptives that also may cause abortions by preventing the implantation of the fertilized embryo, which is not “contraception” because it occurs after conception, which is the beginning of an individual human life.  The Court ruled that religious owners of closely-held corporations, even if for-profit, religious people, under the 1993 Religious Freedom Restoration Act, are not compelled to violate their beliefs because they follow their vocation to engage in commerce and incorporate to protect themselves from liability.

            Abortion, as an evil, is a moral issue, not strictly a religious one.  Religion and morality are distinct and, as secularists and atheists argue, even non-believers can accept at least certain morals, but religion was at issue in this case because it informs our understanding of morality and compels believers to act morally.

The contraception/abortifacient/sterilization mandate imposes a substantial burden on business owners, insofar as they would have to pay expensive fines for non-compliance in order to follow their religious conscience.  A substantial burden was necessary for conscience protection under the statute.  Another element of the law is the requirement that government use the least restrictive means to achieve its purpose, which the federal government failed to use in imposing the mandate.  The Obama Administration was unable to prove a compelling interest in requiring insurance coverage for relatively inexpensive drugs (e.g. the four abortifacients to which the plaintiffs objected), as the Administration undermined its argument for a compelling interest by the many exemptions to Obamacare it has granted, or how imposing such a mandate would be the least restrictive means, considering it had granted many exemptions to the mandate in question.  In fact, the Administration’s “accommodation,’ given to the non-profit corporations – as inadequate as it is – proved it was not using the least restrictive means in regard to for-profit corporations. 

The case was not about equality, as the mandate does not cover contraception for males.  Regardless, the ruling upholds the fundamentality of religious liberty.  Business owners who incorporate and retain full ownership of their companies cannot be forced to abandon their practice of religion in the free market.  In other words, incorporation under the laws of a state does not equate to the forfeiture of religious liberty in commerce.  

            The ruling was narrow, as was the dissent.  The Court made clear the ruling only applies to corporations that are so closely-held by their owners as to be indistinct from them, not to publicly-traded companies, and only in instances where government cannot show it had no other recourse to accomplish its purpose. 

The liberal dissenting Justices made much of the fact that the plaintiffs were for-profit corporations, as if their only motivation is profit, as if such corporations do not do good, and as if being non-profit necessarily, ipso facto, makes an entity good.  In both this case and a recent related one in which the Court granted an injunction to a college from the same mandate, the liberal minority would have the government judge religious beliefs, deciding how sincerely held the beliefs are and whether they are reasonable and even making theological arguments about them, instead of empathetically protecting their religious practices, which was the intent of the Religious Freedom Restoration Act.  The minority liberal Justices were skeptical of the plaintiff’s religious beliefs and moral concern about the beginning of life at conception, not implantation of the embryo, as most liberals cannot recognize the humanity in those human beings that look different, whom they dehumanize as only “potential” humans, contrary to scientific understanding that a human life begins at conception, even though the law was meant to protect even those religious beliefs with which they disagree.  

Nevertheless, the dissenting Justices’ emphasis on the plaintiffs as for-profit, as opposed to non-profit corporations, suggests that non-profit corporation plaintiffs, religious or not, are likely to win their cases that have been appealed to the Supreme Court in which they object by various degrees to the Obama Administration’s contraception/abortifacient/sterilization insurance mandate because the accommodation granted to religious organizations by the Administration is inadequate.  

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