The Supreme Court’s 5-4 ruling Monday that closely held corporations cannot be required to provide contraceptive coverage for their employees brought protests that it will deny some corporate employees full access to health care.
But the court’s ruling was narrow, and its effect on women’s use of contraception likely will not be as broad as its opponents claim. What was more disturbing about the ruling than the issue of preventing conception was the court majority’s insistence on bringing into legal life a new entity - the corporation as person.
The court’s conservative majority members first conferred personhood on corporations when they declared in the Citizens United case that corporations have a right to free speech. Laws barring corporate donations to influence campaign outcomes were therefore illegal. Now in deciding Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties v. Burwell, the court has endowed so-called “closely held” corporations with religious rights.
In an unnerving assertion, Justice Samuel Alito wrote in the majority opinion, “Any suggestion that for-profit corporations are incapable of exercising religion because their purpose is simply to make money flies in the face of modern corporate law.”
It would seem much the opposite. A prime reason businesses incorporate is to protect their principals from personal liability. A corporation is by definition a legal construction, not a person. But now the court, in the thrall of these engines of commerce, is declaring them in profound ways entitled to the protections the law provides for people under the Religious Freedom Restoration Act. And with that, corporations not only have broken through limits on their influence on elections, but also gained rights of conscience.
Justice Ruth Bader Ginsburg wrote in the dissent, “In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.”
That more corporations can be exempt from providing contraceptive coverage in their insurance plans is regrettable, but it’s not an obstacle most women can’t work around. It’s already an exemption granted to churches and church-related businesses. And it’s true that objections to contraceptive coverage conflict with the larger and broadly shared goal of reducing abortions - which are indeed dropping in the United States, apparently because of wider use of contraceptives.
But the greater issue isn’t the subject of the ruling, but the assumption that supports it. And that is, as Gov. Mitt Romney said to a heckler during his presidential campaign, “Corporations are people, my friend.”
When corporations are granted rights and protections once reserved for people, then the rights and freedoms of people are diluted and compromised. With the Citizens United ruling, the court has allowed the financial clout of corporations to drown out the free speech of ordinary citizens. And now with Hobby Lobby, the court has weakened the right of some women employees to access health care services they are entitled to under the Affordable Care Act.
The Constitution protects the rights of religious groups and churches, but once individuals form a corporation for the purpose of making money, that corporation should be subject to the laws of the land regardless of how closely it is held.
Otherwise, the consequences are as Ginsburg wrote in dissent: “The court’s expansive notion of corporate personhood invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faiths.”