Could Citizens United and a semi-colon undo Obamacare?

National Constitution Center

Next Tuesday, the Supreme Court will hear two cases related to the Affordable Care Act, or Obamacare, and the stakes are high for both sides. In fact, the interpretation of a semi-colon in the context of the First Amendment could play a critical role.

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The semi-colon’s use was argued in the appeals court decision that led one of the two cases to the Supreme Court’s doorstep.

“Appellants also argue that Citizens United is applicable to the Free Exercise [of religion] Clause because ―the authors of the First Amendment only separated the Free Exercise Clause and the Free Speech Clause by a semi-colon, thus showing the continuation of intent between the two,” said circuit judge Robert Cowen in the Conestoga Wood appeals court decision. “We are not persuaded that the use of a semi-colon means that each clause of the First Amendment must be interpreted jointly.”

In other words, the semi-colon argument holds that the free exercise of religion and free exercise of speech are linked. Since the Citizens United case gave corporations the same free speech rights as people, the argument states that corporations should have the same free religious exercise rights as people, too,  and they should be able to opt out of Obamacare.

Judge Cowen didn’t agree with the logic, but now the issue is one of several that will be argued in front of the Supreme Court on Tuesday.

In late November 2013, the Justices accepted the two cases, to be argued at the same time, which question the government’s ability to compel for-profit companies with religious convictions to pay for birth-control coverage.

In Sebelius v. Hobby Lobby Stores, Inc., the national hobby and crafts chain store asked the Court to take on the birth control mandate that applies to for-profit companies. The Obama administration also had asked the Court to take up the Hobby Lobby case.

The issue in the Hobby Lobby case is if the company is protected under the 1993 Religious Freedom Restoration Act, which says the government “shall not substantially burden a person’s exercise of religion” unless that burden satisfies strict scrutiny. Hobby Lobby claims as a family-owned company, its religious rights are violated by Obamacare. So it would face a huge financial cost to pay fines related to opting out of insurance coverage for its employees.

Representing Hobby Lobby is Paul Clement, who argued before the bench in the 2012 Affordable Care Act decision. Solicitor General Donald Verrilli will oppose Clement, as he did during the 2012 arguments over Obamacare in front of the Justices.

In the Conestoga Wood case, a Mennonite family-owned, profit-making business claims that the ACA’s birth control mandate violates the company’s rights under the First Amendment free exercise clause and the federal Religious Freedom Restoration Act.

When the Court accepted both cases, at least four justices signaled they wanted to consider the First Amendment issue linked to Citizens United along with the Religious Freedom Restoration Act issue.

What does all this mean for Obamacare?

The Supreme Court won’t be ruling on the constitutionality of the Affordable Care Act, which it upheld in June 2012. But it could set a precedent that would allow some companies to opt out of the employer mandate, which forces companies to provide health care to full-time employees or pay a fine.

The Hobby Lobby-Conestoga Wood case is the first of more than 90 related cases filed by other religious-oriented plaintiffs, including hospitals, social service agencies, universities, schools, and companies.

Kaiser Health News estimates that more than 1,000 religious institutions and other employers with millions of employees have objections. The administration has only exempted a narrow category of objectors, including churches, other houses of worship and nonprofits with religious missions.

The Obama administration has already delayed the employer mandate by a year or two, depending on the size of the company. But implementing the mandate is seen as a crucial component of the ACA, since insurance companies need more people under coverage to make coverage of people with pre-existing conditions viable.

But in the long run, the Hobby Lobby-Conestoga Wood decision could redefine the First Amendment, if the Court agrees that corporations have the same personal religious rights as people, extending the logic behind the Citizens United case from 2010.

That was the opinion of the 10th Circuit Appeals Court that heard the Hobby Lobby case before it went to the Supreme Court.

“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression,” said Judge Timothy M. Tymkovich, who wrote for the majority.

One of the dissenting judges, Chief Judge Mary Beck Briscoe, strongly disagreed.

“This is nothing short of a radical revision of First Amendment law, as well as the law of corporations. But whatever one might think of the majority’s views, the fact remains that they are wholly unsupported by the language of the Free Exercise Clause or the Supreme Court’s free exercise jurisprudence, and are thus, at best, ‘considerations for the legislative choice,’ ” said Briscoe.

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