Christianity Today

Changes announced today by the Department of Health and Human Services (HHS) to its contraceptive mandate are likely to focus attention even more on for-profit companies that object to the mandate on religious grounds.

While several churches and religious nonprofits are likely to continue their protests against the mandate, today's announcement says they don't have to directly provide full contraception coverage to their employees. But for-profit companies have no exemptions, even if they're religious.

The battle over the mandate—and the emergency contraception it requires—has long been over personhood. Is a fertilized egg a person? Do the emergency contraceptives stop eggs from uterine implantation, ending a person's life?

But now the legal battles against the HHS employer contraceptive mandate are shifting to very different questions of personhood: Are for-profit corporations "persons" in such a legal sense that they have religious rights? And do their religious liberties allow them to avoid the mandate?

Several for-profit corporations have brought their cases against HHS on the basis of the First Amendment and the Religious Freedom Restoration Act (RFRA). The 1993 federal statute states, "Government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability" without compelling government interest.

Until now, HHS cases have largely fought over the term "substantial burden"—essentially debating the political version of the youth-group perennial, "How far is too far?" But now that appeals courts are weighing in, the conversation may shift to another of the RFRA's terms.

"The question is whether corporations are a person under that statute," said Howard Friedman, professor of law emeritus at University of Toledo.

Avoiding the issue

Thus far, courts have avoided the issue of a corporation's religious rights, Friedman says. In some cases, judges have ruled that plaintiffs have not demonstrated "substantial burden," simply because it's easier than weighing in on the First Amendment and RFRA rights of companies, he said.

If one or more of the cases against the employer contraceptive mandate is successfully appealed to the U.S. Supreme Court, justices will face a tricky set of intertwined issues: whether or not a corporation can practice religion; whether or not a corporation has the same religious freedom as its owners; and whether or not being required to cover contraceptives violates a corporation's—or its owners'—religious freedom.

"It's one of the most difficult legal questions I've seen, in terms of all the issues that are intertwined," said Friedman, who runs the Religion Clause blog and wrote about the issue last month. "There really haven't been any [courts] that have said corporations themselves have religious rights. They've either avoided the issue [by finding no substantial burden] or said the corporation can assert the owners' rights."

One such ruling occurred when the Tenth Circuit Court of Appeals denied an injunction to one of the highest-profile corporations in the HHS dispute, Hobby Lobby, which is owned by a family of evangelical philanthropists. The court concluded that the Green family's concerns that "funds [might] subsidize someone else's participation in an activity condemned by plaintiff[s'] religion" were not a substantial burden to the Greens' religious exercise.

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