March 21

Amy Sepinwall is an assistant professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School.

This coming week, the Supreme Court will hear oral arguments in what is likely to be one of the most contentious cases of the year: Sebelius v. Hobby Lobby Stores. The case consolidates two lower-court opinions on challenges to the Affordable Care Act’s contraceptive mandate, a provision requiring that large businesses include coverage for various forms of birth control in their employee health plans. But it’s about far more than birth control. The more important debate is: Can a business claim to have a conscience?

The court challenges were brought by Hobby Lobby, a chain of craft stores owned by the Green family, and Conestoga Wood Specialties, a company that manufactures kitchen cabinets and is owned by the Hahn family. Both companies maintain that their owners object to contraception on religious grounds and that the contraceptive mandate interferes with the owners’ rights to religious freedom. Hobby Lobby prevailed before the U.S. Court of Appeals for the 10th Circuit, while Conestoga Wood lost before the 3rd Circuit. The Supreme Court has agreed to hear both cases to resolve the diverging legal opinions.

Because 89 percent of Americans, including 82 percent of Catholics, believe that contraception is morally acceptable — and because most women of childbearing age receive health insurance through their employers — many find the prospect of circumventing the contraceptive mandate troubling. And so they are inclined to deny that a company — especially one operated for profit, rather than a religiously affiliated nonprofit such as a university or hospital — can practice religion, let alone assert rights of conscientious objection.

But objections to the corporate expression of morals or religion are troublingly inconsistent. For example, Moveon.org accused Target of improperly “meddling” in politics when it contributed money to a political action committee that was supporting an anti-gay candidate for office, but it sent a massive “Thank you” card to Starbucks after the coffee company filed a Supreme Court brief arguing in favor of gay marriage. By the same token, some ridicule the notion that a corporation can have a religion, as Hobby Lobby seems to imply, but they approve of the idea that a corporation can have a race. (When courts recognize that there is such a thing as, say, a black company, it can claim to have been a target of racial discrimination, as the Court of Appeals for the 4th Circuit held this month.) If public attitudes in these cases are going to be anything other than ad hoc, we need to decide whether to recognize corporate convictions, no matter their content.


(Mitch Blunt for The Washington Post)

It might seem more principled to determine whether the notion of a corporate conscience makes sense in the first place. Unsurprisingly, Hobby Lobby and its counterparts seek to do just this, and they resoundingly favor a wide range of corporate constitutional rights. They’re relying on the Supreme Court’s Citizens United decision, arguing that the case recognized for-profit corporations’ First Amendment rights of expression and that these rights include religious as well as political expression. In fact, however, the court in Citizens United was far more circumspect. It identified the importance of speech, no matter the speaker. But it did so to protect individual citizens’ interests by allowing them to hear as much speech as possible, not to give companies full protection under the First Amendment.

Nor should you expect to find compelling support for the idea of a corporate conscience elsewhere. Consider what it means to have a conscience. A being with a conscience is self-conscious — it has a sense of itself as an entity over time, harboring memories of its past and committing itself to projects, goals and values into the future. And the fact that it chooses its projects, goals and values requires additional capacities: the ability to judge its options, which requires that it know its desires and aspirations, and that it be sensitive to morality, prudence and value. A corporation does not have anything near these capacities.

Unfortunately, the fact that a corporation can’t have a conscience does not settle the question of whether it may oppose the contraceptive mandate, for two reasons. First, the corporation’s owners could still claim that the corporation be exempt from the contraceptive mandate as a matter of protecting their individual consciences. And second, those who oppose Hobby Lobby’s stance do so because they want to ensure that women have adequate access to reproductive health care. They would object to efforts to circumvent the contraceptive mandate whether it was a corporation or an individual business owner who sought an exemption.

Stepping back, it is worth noting that this controversy has arisen because of our choices about the kind of health-care system we want. Our resistance to single-payer national health care means that employers, whether corporations or individuals, stand as middlemen between employees and their coverage. (Or between women and their reproductive freedom.) There would be no need for a contraceptive mandate, and no need to entertain objections to it, if the federal government were in charge of dispensing health insurance in the first place.

Of course, even national health care wouldn’t solve the problem of conscience: Under a national system, it would be individual taxpayers, instead of employers, who would contend that they were being forced to fund conduct that conflicted with their religious beliefs. But the complaint would be much less compelling coming from a taxpayer, as tax dollars already fund contraception, including the “morning after” pill, under Medicaid, as well as other programs and expenses that many citizens oppose, such as capital punishment, research using embryonic stem cells and so on.

Living in a country where tax dollars are used for ends that some citizens disagree with may be the inevitable price of democracy. Having to offer contraception that conflicts with one’s religious beliefs, or having access to contraception turn on one’s place of employment, needn’t be.

sepin@wharton.upenn.edu

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