'The Word[ ] 'Person'...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations

Abstract

In recent months, lawsuits challenging the Patient Protection and Affordable Care Act’s (“ACA”) requirement that providers of health insurance pay for contraceptives and abortifacient drugs have attracted attention from legal commentators, the news media, and even the Supreme Court. Plaintiffs argue that the contraception mandate violates the Religious Freedom Restoration Act (“RFRA”) by imposing a substantial burden on their religious exercise without meeting strict scrutiny requirements. Early circuit court decisions at the preliminary injunction phase foreshadowed a circuit split on the issue, with some siding with the plaintiffs, and others siding with the government. While this Note was going to print, the Tenth Circuit issued a complicated en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, that reversed a lower court ruling in favor of the government. Although that case signaled a victory for the plaintiffs, the fractured nature of the decision only underscores the likelihood that this issue will ultimately land on the Supreme Court’s doorstep.

Hobby Lobby highlights a novel issue — whether for-profit corporations can seek exemptions from the ACA by invoking RFRA. This Note will consider the arguments put forward by the majority in Hobby Lobby, as well as those put forward by the dissenters. Moreover, this Note will address additional textual and contextual factors that courts have failed to consider, ultimately concluding that RFRA draws no distinction between for- and nonprofits. Policy arguments against allowing for-profits protection under RFRA are then considered. In the end, if courts will stay true to RFRA’s text and context, they will be led to two ultimate conclusions. First, for-profits are within RFRA’s auspices. And second, the sacrifice of conscience is not the cost of incorporation in America.

Keywords: RFRA, Affordable Care Act, Obamacare, for-profit corporations