Obama can force Christian doctor to cover abortion-inducing drugs?

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stop abortion madateThanks to Chief Justice John Roberts, the answer is probably yes, but only if they employee more than 50 employees.

But DeVine Law doubts that whether doctors or any other business is incorporated or not would affect the application of the First Amendment’s freedom of religion clause to protect an employer of more than 50 employees from such Obamacare regulatory mandates.

The question came up in an unusually personal way in a courtroom exchange between Justice Department Lawyer Benjamin Berwick and federal D.C. District Court Judge Reggie Walton during oral argument in the case of Tyndale House Publishers v. Sebelius.

Tyndale, one of the nation’s largest publishers of bibles, is a non-profit corporation challenging the HHS employer mandate under Obamacare requiring employers of more than 50 full-time employees to provide health insurance that includes coverage for sterilization, contraception and abortifacient drugs (morning-after pills) or devices that induce abortions. Since Tyndale is a self-insurer, the Obama Administration’s so-called “fix” that sought to avoid the religious freedom issue by requiring insurance companies to provide such coverage for “free” does not apply to Tyndale.

However, the more personal exchange concerned the solo medical practice of Judge Walton’s wife, whose solely-owned corporation employs less than 50 employees:

Berwick argued here–as the administration has argued in other cases where private businesses are challenging the sterilization-contraception-abortifacient mandate–that once people form a corporation to conduct business they lose their First Amendment right to the free exercise of religion insofar as their business is concerned.

In the face of this argument, Judge Walton asked an interesting question. His wife, a graduate of Georgetown Medical School, is a physician. She has incorporated her medical practice. Does that mean, according to the Obama administration’s argument, that the federal government can force her to act against her religious faith in the conduct of her medical practice?

Berwick effectively answered: Yes.

Here, from the official court transcript, is the verbatim exchange between this Obama administration lawyer and Judge Walton:

Benjamin Berwick: “Well, your honor, I think, I think there are two distinct ideas here: One is: Is the corporation itself religious such that it can exercise religion? And my, our argument is that it is not. Although again, we admit that it is a closer case than for a lot of other companies. And then the second question is, can the owners–is it a substantial burden on the owners when the requirement falls on the company that is a separate legal entity? I think for that question precisely what their beliefs are doesn’t really matter. I mean, they allege that they’re religious beliefs are being violated. We don’t question that. And we don’t question that that is the belief.

Judge Reggie Walton: But considering the closeness of the relationship that the individual owners have to the corporation to require them to fund what they believe amounts to the taking of a life, I don’t know what could be more contrary to one’s religious belief than that.

Berwick: Well, I don’t think the fact this is a closely-held corporation is particularly relevant, your honor. I mean, Mars, for example–

Judge Walton: Well, I mean, my wife has a medical practice. She has a corporation, but she’s the sole owner and sole stock owner. If she had strongly-held religious belief and she made that known that she operated her medical practice from that perspective, could she be required to pay for these types of items if she felt that that was causing her to violate her religious beliefs?

Berwick: Well, Your Honor, I think what it comes down to is whether there is a legal separation between the company and—

Judge Walton: It’s a legal separation. I mean, she obviously has created the corporation to limit her potential individual liability, but she’s the sole owner and everybody associates that medical practice with her as an individual. And if, you know, she was very active in her church and her church had these same type of strong religious-held beliefs, and members of the church and the community became aware of the fact that she is funding something that is totally contrary to what she professes as her belief, why should she have to do that?

Berwick: Well, your honor, again, I think it comes down to the fact that the corporation and the owner truly are separate. They are separate legal entities.

Judge Walton: So, she’d have to give up the limitation that conceivably would befall on her regarding liability in order to exercise her religion? So, she’d have to go as an individual proprietor with no corporation protection in order to assert her religious right? Isn’t that as significant burden?

DeVine Law has previously suggested in this space that we doubt the “free exercise of religion” can protect companies engaged in interstate commerce, whether incorporated or not, from Obamacare’s mandates given analogous Supreme Court precedents that require taxpayers to pay taxes even if the government spends their tax dollars for activities that violate their particular religious beliefs.

[Of course, the fiction that medical providers are engaged in “interstate” commerce under the Supreme Court’s 1942 decision in Wickard v Filburn should be reversed; which is not beyond the realm of possibility, especially given that Chief Justice Roberts used the “taxing” power and not the Commerce Clause to uphold the individual mandate.]

However, since the employer mandate only applies to companies with 50 or more employees, we doubt it applies to Judge Walton’s wife’s practice. But the only possible exception to the employer-contraception-mandate that the Supreme Court might entertain, given current precedents, would be for non-profit companies specifically incorporated pursuant to their specific religious beliefs.

Incidentally, on Nov. 16, Judge Walton granted Tyndale a preliminary injunction preventing the Obama administration from forcing the corporation to violate the religious beliefs of its owners.

DeVine Law

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