The blog in a nutshell

The blog in a nutshell

Monday, November 16, 2015

RFRA, Hobby Lobby, and the Texas Abortion Case: Indirect for Thee, but not for Me

Recently, the Supreme Court granted certiorari (agreed to hear) an abortion case.  Petitioners in that case are challenging two Texas laws which regulate abortion providers in very technical ways.  Specifically, the law requires providers of abortion to have hospital admitting privileges in local hospitals, and requires abortion-providing facilities to meet the standards of "ambulatory surgical centers."  I don't want to get into the merits in this post, and so these details are not very important.

I don't want to get into the merits of whether there is a constitutional right to abortion. What interests me about the claim is the relationship of the claim to the constitutional right.   The right to abortion in Casey and Roe does not belong to the provider of abortions: there is no right to *provide* an abortion.  Instead, the right belongs to the person seeking access to abortion.  And the law does not directly regulate those people.

The claimants thus make the argument that the burdens on abortion provided by these Texas laws unduly burden the right of potential patients to have an abortion.  Thus, although the briefs debate whether the regulations are appropriate themselves, they also delve into the question of whether the result of the law would be to close enough abortion facilities to act as an undue burden on people seeking abortions.

I think these "indirect" constitutional rights cases raise interesting questions that go beyond a right to an abortion.  They also relate to other rights in other contexts.

One example comes to mind.  The example came up significantly during the Hobby Lobby debate.

As you are probably aware, one of the fundamental questions was whether corporations could have their religion "substantially burdened" under RFRA and thus obtain protections under the Act.  In what seemed to me like an overly-black-and-white analysis, many advocated that corporations can't practice religion.  That argument, it would go, is that when one acts through legal separateness, one has to legally separate their own religious beliefs through the artificial entity one created.  If one accepts the benefits of limited liability, one has to obtain the costs as well.

The argument in favor of corporate RFRA rights often focused on non-profits, which I think is a little besides the point, since one can easily make a distinction for, say, a Church.  The purpose of a non-profit in corporate separateness is different than for-profit corporations (indeed, in only one state, Kansas, do non-profits have shareholders; in others, they typically have membership, but are not "owned" even when they are controlled).   But the smarter counter-argument was that individuals exercised religion *through* corporations, and that the line-drawing between a Church and a private, for-profit entity is not so easily distilled.

That's right, of course:  A privately-held company is on a sort of continuum.  A church is at one end of that continuum (let's put religious universities and schools and other entities that are not designed to earn any money other to pay for its operations in the same category).  A non-profit gift shop designed to support the Church is next.  Then, say, a for-profit wedding chapel with a specific religious purpose, run by an ordained Minister.  Then, a kosher shop.  At some point you reach a for-profit company like Hobby Lobby (or, say, Chik-fil-a), which is run primarily for profit but wants to incorporate Christian values, even at the expense of profits.  At the other end, a public company (like Coca-Cola) that is owned by shareholders with diverse religious views, who presumably cannot exercise any religion, and, to the extent that directors and officers try and use the company to exercise their own religion, might be violating their fiduciary duty to those shareholders.

As a result, the more narrow argument ends up arguing that, while corporations do not have religious rights, corporations are fictional entities.  They are run and managed by directors, officers, shareholders, and employees.  And a regulation aimed at a corporation can have the indirect effect of infringing the religious liberties of the individuals who run them.   Under this argument, the response to the liberal argument is that while individuals give up certain rights when undertaking the corporate form, their First Amendment right--and the statutory rights under RFRA that incorporate Congress's understanding of them--are not one of those rights.  I think is actually pretty fair, as running a company of significance without using some form of limited liability structure these days is near impossible, so that asking religious people to make this choice is tantamount to requiring religious people to refrain from entrepreneurship.

The Court accepted this more narrow argument, explicitly.  And I don't think this was wrong. But instead of then crafting some sort of test to determine whether the regulation of the (non-religious) corporation creates an indirect undue burden on the rights of the individual, the Court just went on to assume that a closely-held owner of a corporation can imbue the corporation with its own religious beliefs, like the Jewish gollum.

As you can tell, I think this is where the Court went too far.

As I mentioned before, once the Court held that Hobby Lobby and its co-plaintiff, Conestoga Wood, had religion, it accepted the truth of the allegation that this religion was substantially burdened by having to purchase insurance which included abortion.

I think I would have taken a quite different approach.  Again, in light of my earlier post, I would have required Hobby Lobby's owners (the Greens) and Conestoga Wood's owners (the Hahns)* to identify exactly what about the contraception mandate violates their religious belief; "complicity" is not enough.

1) Is it merely paying money that would ultimately be used for contraceptive services?  If so, it's unclear whether that is actionable or not.  After all, I suspect the Court will not grant relief to a religious pacifist who refuses to pay taxes because the money will be used for war.

2) Is it the act of approving contraceptive use?  Technically, neither Hobby Lobby nor Conestega Wood have the ability to forbid it, so nobody is approving it.  And neither company processes any claims themselves; instead, Hobby Lobby's third-party administrator processed Hobby Lobby's payments on HL's behalf, and CW's third-party-insurer processed that third-party insurer's payments, If the companies did, then the next question is whether the Greens and Hahns are actually affected, because it is unlikely that they themselves processed any payments.  Sure, their employees did.  But how involved were the Hahns?  And to the extent they were involved, did they have to be? Could they have delegated it to their employees?  I say this because I think it is unlikely that the Hahns have the right to discriminate in employment based on religion (at least absent a sincerely held belief that hiring outside of their religion substantially burdens their religious beliefs generally, and, according to the Hobby Lobby majority, even with such religious belief, at least with regards to race), and if they do not, it raises a question of whether the Hahns have any legally-cognizable interest in their company's employees acting in conformity to their own religious practices.  I am not asking these questions rhetorically - I think these are difficult questions that a Court actually does need to resolve if they come up.

3) Perhaps it is directly paying for the contraception itself.  In that case, Hobby Lobby does indeed pay out claims, as they are self-insured.  And, since it is closely-held, the Greens are effectively paying them out as well.  I think, when all we are talking about is money of a for-profit entity, the question of the corporate veil is closer, and might win the day even when I think it shouldn't automatically prevent a RFRA claim in other circumstances.  But that's a closer case, so maybe the Greens' rights are burdened.  But still, the Hahns' aren't.  Conestoga Wood, IIRC, is not self-insured, and although it pays for insurance that includes among its bundle of options contraception, the insurer pays for the contraception.  Although that adds to the cost of the insurance product to Conestoga Wood, I do not think that's a direct enough relationship to allow the Hahns to object without also allowing our pacifist taxpayer friend to get a huge anti-war exemption.  So it is certainly possible that Conestega Wood could have lost even had Hobby Lobby won.

(The Court simply refers to the "funding" of contraception, and thus does not need distinguish between alleged right 1, which I think is untenable, and right 3, which I think is far more persuasive.)

The broader point is that our Constitutional system is not quite so rigid as to not make room for broad notions of indirect rights.  Nor does it need to come up with rules, like in Hobby Lobby, that transformed indirect rights to direct rights at the snap of fingers.  If that's the case, then we should just assume that the abortion providers in Texas can assert a right to provide abortions, and avoid that issue entirely.  That can't be the case, so the Court should not simply hold certain indirect rights to be more "direct" than others.  Doing so will invariably allow the Court to pick and choose which constitutional rights it wants to enforce broadly, and which it wants to practically eliminate.

One last point.   Considering the indirect rights of *individuals* could resolve some of the problems that came up had the Court held that individuals were not allowed to practice their own religion through their for-profit corporations.   A popular example in the blogosphere was the question of whether a rule requiring all supermarkets to sell beef would violate the rights of kosher stores.  It is at least arguable, however, that even if a private individual did not have a legal religious right to operate a kosher store through a for-profit corporation, such a rule might violate the religious rights (and Equal Protection Rights) of the store's customers.  Likewise, requiring a Church gift shop to be open on Sunday, or a Catholic Church to hire female or gay priests, is arguably undue interference with the rights of individual churchgoers to have access to their Church.   Such use of indirect rights to solve the corporate form problem would also benefit from Courts treating the interference-with-religion/least-restrictive-compelling-interest tests as a single balancing test, which the Court has seemed to have done regularly both pre and post Smith, but has never formally acknowledged.  

*Note that in both cases each corporation had multiple owners.  In this case, the religious beliefs were alleged to have been the exact same among all owners.  But Hobby Lobby posts interesting questions going forward regarding a company in which the beliefs vary among co-owners.   Is it just the interests of the majority shareholders?  Even in a publicly-held corporation?  If so, at what point does the majority owner violate its fiduciary duty to the minority owner?


  1. On the 3rd RFRA theory above, the reason why I think the corporate separateness matters more when the claim is "paying money to fund/buy," is because technically isn't the Green's money. That's why, if the company borrows money to pay for contraception, and can't repay it, the Greens don't owe it.

    That being said, although I think that is the right answer, I am not 100% sure. After all, the Greens may have an interest (however remote and indirect to us) in being able to "invest" their money and energy in a company that doesn't pay for contraception. If that interest is sincere, and we hold it's too indirect to be vindicated by RFRA, then we may keep the Greens from acting as entrepreneurs in the first place. And I think that is a substantial burden.

    On the other hand, expanding the rights of the indirect too much can quickly get out of hand. This is why I also support, at least as policy, treating RFRA like a balancing test. We can allow the Greens to have a lesser interest in the goings on of Hobby Lobby then they would have in their own personal affairs, without refusing to give that interest any weight.

    Of course, alot of what I suggest is about preferred policy. And commentator Unknown pointed out in a previous post, this is a statute. It's one thing to say that Congress merely intended to re-codify the pre-Smith doctrine. It's another thing to say that it intended to re-codify the pre-Smith doctrine but allow Congress to modify the doctrine based on equitable principles. Scalia has a point - the pre-Smith doctrine was no more workable than the post-Hobby Lobby doctrine.

    Perhaps the only legally appropriate solution is to repeal and replace RFRA with a more thought-out balance. Practically speaking, that is impossible in any immediately foreseeable political climate.

    1. I should have said "but allow courts"

      Sorry for any confusion.

  2. Interesting post. I confess I don't have anything substantive to add, but "Golem" is a being created from inanimate material. "Gollum" is Sméagol's alter-ego from Lord of the Rings.

    (I also love that BlogSpot's spellchecker automatically puts the accent over the 'e' in "Sméagol".)

  3. Would You point to the exact quote from the court's opinion in Hobby Lobby which is flawed?

  4. Any thoughts on why the things that may NOT burden a religious belief (filling out a form?) are so different than the things that MAY burden the right to an abortion (waiting periods, costs, distance, etc.)?

  5. This comment has been removed by a blog administrator.