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SCOTUS May Settle Circuits in Obamacare Mandate

By Brett Snider, Esq. on August 05, 2013 | Last updated on March 21, 2019

Private businesses and universities have been battling tooth and nail to prevent the health care mandates in the Affordable Care Act ("Obamacare") from forcing the private entities to provide a certain minimum level of health insurance coverage.

Luckily for them, the mandate's compliance deadline has been pushed back to 2015, giving companies more time to settle their affairs, or simply more time to allow this issue of the mandate and free exercise of religion to reach the Supreme Court.

Several circuits have attempted an answer in this arena, and SCOTUS' attention may finally suss out whether corporations can assert free exercise claims.

Third Circuit

In a case decided in early August, the Third Circuit denied that corporations have First Amendment free exercise rights, despite the ruling in Citizens United.

It isn't really a far stretch of the imagination to see how the appellant, Conestoga Wood Specialties Corp. (a mouthful) would think that corporate personhood is more analogous to natural personhood, when SCOTUS refers to free speech in corporations being anchored to a speaker's "corporate identity."

The Third rejected Conestoga's claims, aptly noting that the legal fictions that make up corporations cannot pray, worship, or perform any other form of religious praxis, and corporations do not by their nature evince the religious beliefs of their owners.

Tenth Circuit

Much like almost every plaintiff corporation who has refused to follow the Obamacare mandate, Hobby Lobby complained to the Tenth Circuit that the mandate's requirement to provide coverage for contraceptive care was a burden on the company's free exercise.

Unlike the Third, the Tenth Circuit, citing Citizens United, expanded the Free Exercise Clause outside of the realm of natural persons, claiming that it extends to corporations like Hobby Lobby as well.

The Tenth buttressed this idea by citing SCOTUS' decision in U.S. v. Lee, explaining that a private citizen's free exercise rights are not muffled or subsumed by that citizen's desire to incorporate for profit.

It seems likely that this case would be taken up by SCOTUS, probably to answer some nagging questions about how the Religious Freedom Restoration Act (RFRA) and free exercise operate in the face of the Obamacare mandate.

Fourth Circuit

SCOTUS may also consider the actions of the Fourth Circuit in evaluating free exercise in face of the Obamacare mandate, who mostly punted on a case they faced in July, but did raise some interesting issues.

Aside from those arguments raised by the Third and Tenth, the Fourth touched on just how substantially burdened a business might be under Obamacare -- perhaps the business doth protest too much -- and whether a law of general applicability imposes such a burden.

A Beast of Burdens

If any of these cases are granted cert, they may have to evaluate this burden -- unlike the rarely met undue burden on natural women for whom Obamacare's mandate seeks to provide -- and whether it applies to the growing constellation of rights ascribed to non-natural persons, i.e., corporations.

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