Topics: Obamacare

Will Citizens United take down Obamacare’s HHS mandate?

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Citizens United, the landmark 2010 ruling that corporations have a First Amendment right to engage in political speech, has constitutional implications that could lead the Supreme Court to overturn the contraception mandate promulgated by the Health and Human Services Department as part of Obamacare.

Here’s what Justice Anthony Kennedy, long viewed as a swing vote on the high court, said about corporations and the First Amendment, writing for the majority in Citizens United:

If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech. If the anti-distortion rationale were to be accepted, however, it would permit government to ban political speech simply  because the speaker is an association that has taken on the corporate form . . .

This troubling assertion of brooding governmental power  cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.

Note that the question of whether a corporation qualifies as a person already plays a key role in the legal challenge mounted by The Becket Fund for Religious Liberty on behalf of Hobby Lobby, which argued successfully before the 10th Circuit Court of Appeals that it deserves the protections offered by the Religious Freedom Restoration Act.

“What the 10th Circuit did is resolve all the outstanding legal questions,” the Becket Fund’s Kyle Duncan told the Washington Examiner. “All the disputed legal questions — can a for-profit business exercise religion under the First Amendment? Is it a person under the Religious Freedom Restoration Act? Is it a substantial burden to force someone to cover these drugs in their insurance? — the 10th Circuit decided all those as a matter of law.”

Duncan said that the legal challenge to the HHS mandate could reach the Supreme Court as early as next year. If so, how might Kennedy’s Citizens United opinion affect the case?

If “an association that has taken on the corporate form” enjoys free speech rights, what about religious freedom rights? “By parallel logic,” the answer is yes, Jones Day’s Michael Carvin, a constitutional lawyer who has testified before Congress on Citizens United and challenged Obamacare in federal court, told the Washington Examiner.

“A combination of Citizens United and the Hobby [Lobby] case [before the 10th Circuit] tells you that corporations should be able to advance Free Exercise claims,” Carvin explained.

“More important, we’re talking about for-profit corporations, right? But all religious organizations, including the Catholic Church, are corporations within the meaning of Citizens United . . . If you interpret corporations of the kind they were considering in Citizens United, 501c3s, then clearly they can make religious-based claims because all churches are 501c3s.”

The Supreme Court did not distinguish, in that case, between churches and for-profit corporations, Carvin said. The HHS mandate demands that for-profit corporations provide contraception, but exempts churches and non-profit religious organizations from the rule.

The logic of Citizens United thus would suggest that HHS has created a regulation that allows some corporations to exercise their First Amendment rights to the free exercise of religion, but infringes upon the First Amendment rights of other corporations.

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