For-Profit Crusaders: The Accommodation of For-Profit Entities in the Contraception Mandate

FOR-PROFIT CRUSADERS: THE ACCOMMODATION OF FOR-PROFIT ENTITIES IN THE CONTRACEPTION MANDATE JESSICA N. PAULIK * I. INTRODUCTION “[M]y pledge to the American people . . . is that we’re going to solve the problems that are there, we’re going to get it right, and the Affordable Care Act is going to work for the American people.” 1 President Barack Obama ran for office on a platform that consisted, among other things, of substantial health care, and Medicaid reform. 2 He believed in affordable coverage for all Americans, with a range of options in health care plans for individuals and families to choose from. 3 On March 23, 2010, President Obama signed into law the Patient Protection and Affordable Care Act (“ACA”). 4 The ACA put into place a series of health care reforms across the country, including an individual mandate to obtain and maintain minimum medical insurance coverage and a requirement that Copyright © 2015, Jessica N. Paulik. * Jessica N. Paulik, J.D., Capital University Law School (May 2015); B.A. English Literature, Capital University (2012). I want to extend my gratitude and appreciation to Professor Jim Beattie for his enthusiasm and honest advice through this writing process. I would like to thank my family for being a constant source of support and motivation and for always cheering in my corner. Finally, I owe thanks to Seth for his continued patience and encouragement throughout my law school studies and career. 1 Barack H. Obama, President of the United States, News Conference at the White House on the Affordable Care Act (Nov. 14, 2013) (transcript available at http://www.washington post.com/politics/transcript-president-obamas-nov-14-statement-on-health-care/2013/11/14/6233e352-4d48-11e3-ac54-aa84301ced81_story_1.html). 2 See Kevin Sack, et al., On the Issues: Health Care , N.Y. TIMES, http://elections. nytimes.com/2008/president/issues/health.html (last visited Dec. 31, 2014) (explaining that Obama favors a larger governmental role in American healthcare with ultimate goals of providing “universal coverage” and expanding eligibility for Medicaid and other public health plans). 3 See id. 4 Health Care That Works for Americans , THE WHITE HOUSE, http://www.whitehouse. /healthreform/healthcare-overview (last visited Dec. 31, 2014) (“On March 23, 2010, President Obama signed the Affordable Care Act into law, putting in place comprehensive reforms that improve access to affordable health coverage for everyone and protect consumers from abusive insurance company practices.”). 964 CAPITAL UNIVERSITY LAW REVIEW [43:963 employers and health insurance companies provide certain medical services. 5 Although the American public seemed ready, it did not take long for the constitutionality of the ACA to be challenged. 6 One of the biggest sources of distress regarding the statute arises from the contraception mandate, which requires employers to provide no-cost preventative healthcare, including birth control and sterilizations, to female employees. 7 While arguments from the non-profit sector won the President’s approval and gained one of the few exceptions to the mandate, the arguments surrounding for-profit corporations continued to clog the circuit court dockets. 8 Plaintiff corporations and their owners asked courts to recognize their free-exercise of religion, and they continued to demand an exemption under the health care law. 9 These corporations recently found themselves one step closer, as the Supreme Court held the contraception mandate unconstitutional “as applied to closely held corporations.” 10 This Article analyzes the arguments surrounding the for-profit litigation, beginning with a general background on the ACA and the provisions therein. 11 Next, this Article outlines the original circuit court split and the 5 See, e.g. , 26 U.S.C. § 5000A(a) (2012); 42 U.S.C. § 1396a(a) (2012); 42 U.S.C. § 330gg-13(a) (2012). 6 See e.g. , Virgina ex rel. Cuccinelli v. Sebelius, 702 F. Supp. 2d 598 (E.D. Va. 2010) (Virginia state sought relief by claiming the ACA violated Virgina’s Health Care Freedom Act.); Florida ex rel. McCollum v. U.S. Dep’t. of Health & Human Servs., 716 F. Supp. 2d 1120 (N.D. Fla. 2010) (Florida state, two citizens, and a business federation sought relief from the individual mandate of the ACA.); U.S. Citizens Ass’n v. Sebelius, 754 F. Supp. 2d 903 (N.D. Ohio 2010) (Association sought relief under the Commerce Clause and other constitutional provisions.). 7 Warren Richey, Supreme Court Contraception Mandate Case Sparks Fierce Debate , CHRISTIAN SCIENCE MONITOR, Nov. 26, 2013, available at http://www.csmonitor.com/ USA/Justice/2013/1126/Supreme-Court-contraception-mandate-case-sparks-fierce-debate-video. 8 See 26 U.S.C. § 5000A(d)–(e); Dan Merica & Kevin Bohn, Finalized Rules Let Religious Groups Opt Out of Contraception Mandate , CNN (June 28, 2013, 2:54 PM), http:// www.cnn.com/2013/06/28/politics/obama-contraceptives/index.html; Jennifer Haberkorn, 5 Key Questions About the Legal Issues of the Contraception Mandate , POLITICO (Jan. 13, 2014, 8:44 AM), http://www.politico.com/story/2014/01/obamacare-contraception-mandate-101715.html (“The contraceptive coverage issue is already heading to the Supreme Court in two cases brought by for-profit companies.”). 9 Merica & Bohn, supra note 8. 10 Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2785 (2014). 11 See discussion infra Part II. 2015] FOR-PROFIT CRUSADERS 965 Supreme Court decision in Burwell v. Hobby Lobby . 12 While addressing the holding in several places, the analysis focuses on the general precedent that exists and the arguments that support the Supreme Court’s ultimate holding. 13 This Article further analyzes the arguments arising out of Free-Exercise claims under the Religious Freedom Restoration Act and the Establishment Clause. 14 The Article identifies an ambiguous middle ground that exists between the First Amendment clauses and determine if an accommodation is required or permitted. 15 Finally, this Article proposes a solution to the overarching church-state issue by arguing that Congress should exercise its Article I spending powers in an attempt to accommodate the religious beliefs of its citizens and businesses. 16 II. PATIENT PROTECTION AND AFFORDABLE CARE ACT The ACA contains nine titles, each describing the major areas affected by this law. 17 The overall purpose of the ACA is to provide immediate improvements, such as eliminating limits on benefits, requiring coverage for preventative services and immunizations, and extending dependent 12 134 S.Ct. 2751 (2014); see discussion infra Part II.B. 13 See discussion infra Part III. 14 See discussion infra Part III. 15 See discussion infra Part IV. 16 See discussion infra Part IV. The author acknowledges that between the time this Article was written and the date it was published, the contraception mandate has again been reviewed and additional processes put in place. See, e.g. , Lawrence Hurley, Supreme Court Throws Out Obamacare Contraception Ruling , HUFFINGTON POST (Apr. 27, 2015), http://www.huffingtonpost.com/2015/04/27/supreme-court-obamacarecontraception_n_7151868.html (discussing a more recent Supreme Court case holding in favor of religious objectors); Kimberly Leonard, After Hobby Lobby, a Way to Cover Birth Control , U.S. NEWS & WORLD REPORT (July 10, 2015, 5:35 PM), http://www.usnews.com/ news/articles/2015/07/10/after-hobby-lobby-ruling-hhs-announces-birth-control-workaround (discussing a new accommodation allowing “some for-profit companies to notify the federal government about their religious objections and to request opting out of providing coverage for contraceptives.” Insurance companies and employees will work out a separate plan for contraceptives.). 17 The Patient Protection and Affordable Care Act Detailed Summary, Democratic Party Communications 1 (last visited Jan. 8, 2015) http://www.dpc.senate.gov/healthreformbill/ healthbill04.pdf. These titles include: “[q]uality, affordable healthcare for all Americans, [t]he role of public programs, [i]mproving the quality and efficiency of health care, [p]revention of chronic disease and improving public health, [h]ealth care workforce, [t]ransparency and program integrity, [i]mproving access to innovative medical therapies, [c]ommunity living assistance services and supports, [and] [r]evenue provisions.” Id. 966 CAPITAL UNIVERSITY LAW REVIEW [43:963 insurance coverage until the age of twenty-six. 18 In addition, the Act provides for future medical advances, like preparing for a health insurance market reform, expanding the coverage available in health benefit plans, and requiring shared responsibility to ensure a majority of Americans obtains insurance coverage. 19 Under the ACA, public programs including Medicaid and Children’s Health Insurance Program are expected to see an expansion in the number of participants that qualify. 20 The ACA also plans to improve training and provide more support to health care workers and medical professionals. 21 By mid-2012, twenty-six states, along with several private individuals and private businesses, challenged the overall constitutionality of the ACA. 22 After various decisions by lower courts across the country, the Supreme Court determined Congress could neither force individuals into insurance coverage, nor could it require states to participate in the Medicaid expansion. 23 However, it was within Congress’s taxing power to tax individuals a nominal amount for not enrolling in the insurance coverage desired by Congress. 24 The rest of the Act remains effective and has yet to be overturned in its entirety. 25 As of January 2014, all non-exempted entities must implement the ACA regulations or face large tax penalties. 26 There are four types of exceptions within the ACA that make an employer exempt from complying with its requirements. The first exception is for employers who employ less than fifty employees; these employers have no duty to provide...