They suggested the corporation had rights under RFRA by citing the Supreme Court’s decision in Citizens United v. Federal Election Commission, which said corporations at least had political speech rights under the First Amendment.
The judges said it didn’t matter that the employees would be the ones to make use of the covered contraceptives. “The religious liberty violation at issue here inheres in the coerced coverage of contraception, abortifacients, sterilization, and related services, not — or perhaps more precisely, not only — in the later purchase or use of contraception or related services.”
Circuit Judge Ilana Diamond Rovner disagreed. “What the Kortes wish to do is to preemptively declare that their company need not pay for insurance which covers particular types of medical care to which they object,” she wrote. If that were right, she added, what limits might apply to employers limiting coverage.
That is essentially what judges in the 10th Circuit found regarding the company Hobby Lobby, which has 500 stores in 41 states. “It is by God’s grace and provision that Hobby Lobby has endured,” founder and CEO David Green said in a statement.
But the judges in the Hobby Lobby case said that Green’s exercise of religion was not affected by the decisions of his workers. It is only after a “a series of independent decisions by health care providers and patients” that Green’s health care plan might subsidize an activity to which he objects, the court said.
Hobby Lobby’s case briefly reached the Supreme Court, where Justice Sonia Sotomayor, as the justice responsible for that circuit, turned down its request for an injunction. The Supreme Court’s standards for such grants are more demanding than those of appeals courts, she said.
And she noted that the question of whether corporations are covered by RFRA has not been considered by the high court.
The legal battles have mobilized forces on both sides. The National Women’s Law Center filed a brief in one of the cases that said the contraceptive requirements “further the compelling governmental interests of safeguarding public health and promoting gender equality in the least restrictive means possible.”
The center’s senior counsel, Gretchen Borchelt, said in an interview that an employer should have no more right to make health care choices for its workers than it could claim in telling them how to spend their paychecks.
(To see list of challenges go to High Court on the Federal Page: www.washingtonpost.com/politics/federal-government)