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Missing the Forest for the Trees With the Contraception Mandate

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  • Ken Connor
By Ken Connor, CP Contributor
April 1, 2014|12:23 pm

Last week, the Supreme Court heard oral arguments in the Sebelius v. Hobby Lobby Stores, Inc case. As virtually everyone is aware, the CEO of Hobby Lobby is contesting the constitutionality of the Affordable Care Act's contraception mandate.

The company's refusal to comply with the mandate stems from a religious objection to birth control and abortifacient drugs, and they insist that the First Amendment protects their right to exclude these prescriptions from their health insurance plans. One of the interesting questions at issue in this case is whether or not corporations are entitled to the same legal protections as individual persons. Supporters of Hobby Lobby are quick to point to the legal precedent set in the recent Citizens United ruling, which concluded that corporations, like persons, are protected by the First Amendment in the area of free speech. Thus, if corporations have the same speech rights as individuals persons, so too should they have the same rights of religious conscience. If Hobby Lobby is owned by a Christian family and governed according to explicitly Biblical principles, then it follows that the company's health care coverage may reflect those principles, and the government may not infringe upon this area of Free Exercise.

There is no question that the law has treated corporations as "people" for various reasons, particularly in the last century. Women- and minority-owned businesses, for example, are often entitled to the same kind of affirmative action and quota policies as individuals in these demographics. This debate has prompted journalists and commentators to engage in a review of the judicial history of corporate personhood, in an attempt to navigate the assertions being made in the Hobby Lobby case. Turns out, despite the popular impact of the Citizens United decision, that the habit of according individual rights to corporations is a relatively new phenomenon. From Slate:

"Contrary to present efforts to depict corporations as simple and natural entities-like persons-entitled to constitutional rights, a different view prevailed for most of American history. Until the mid-20th century, the corporation was seen as a special and artificial creature of the government. It has never been seen as entitled to the same array of rights guaranteed to citizens.

This view was held not only by lay people and legislators but by the justices of the court itself. Chief Justice John Marshall did not equivocate in Dartmouth College v. Woodward in 1819: 'A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of law, it possesses only those properties which the charter of its creation confers upon it.' In 1839, Chief Justice Roger Taney agreed wholeheartedly in Bank of Augusta v. Earle: 'A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law. ... It is indeed a mere artificial being.'" 

Whether or not the law has or will continue to treat corporations as "persons" in particular legal contexts, there is clearly an established legal difference between the rights of "natural persons," and those of "artificial persons." A human being is a natural person, and thus possesses the full scope of inalienable rights as articulated in the Declaration of Independence and detailed in the First Amendment to the U.S. Constitution. A corporation is an abstract and artificial construct, a mere "creature of the law." Given this apparently clear understanding of the difference between a natural person and a corporation, it is fascinating to watch the courts and the public agonizes over how and when to acknowledge the artificial personhood of a corporation. Ironic, considering the ease with which the Supreme Court decided – in one simple case and with no legal precedent whatsoever – that unborn human beings are definitively not natural persons.

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The personhood of unborn children is really the issue at the heart of the Hobby Lobby case. Considering how frequently the phrase "religious liberty" is bandied about these days, it's easy to dismiss it as merely an ideological buzz phrase. This is not the case with the Affordable Care Act's birth control mandate, however. Despite the President and Secretary of Health and Human Services' Kathleen Sebelius' seeming inability to wrap their minds around the idea, there are many people who believe that there exists an immutable relationship between sex and procreation. These people believe that marriage is emblematic of the relationship between God and his people, and that one of the principal purposes of marriage is the procreation of human life and the perpetuation of humanity. They also believe that human beings at all stages of development bear the image of God. In light of these convictions, any artificial technology that prevents conception, or worse, terminates the life of a child after conception occurs is a moral anathema. Hence the refusal to comply with the contraception mandate. To do otherwise, for a person of religious conscience, would be tantamount to aiding and abetting in the killing of innocent human beings.

If only the Supreme Court would revisit the idea of natural personhood in relation to legal status of unborn children. An unborn child is the natural progeny of two human beings, possessing his own unique DNA, moving and growing and processing sensory input inside the womb, capable of feeling pain, born into the world nursing and crying and hardwired for loving human contact... yet the law treats him as if his personhood is merely artificial, "have[ing] no legal existence out of the boundaries of the sovereignty by which it is created." In the case of Hobby Lobby, that sovereignty lies with the state of Oklahoma. In the case of an unborn baby, that sovereignty lies with the mother. If he is wanted, he's a human being, a unique person, from the moment of that first positive pregnancy test. A miscarriage is mourned as a tragic loss of human life. The child is given a name and his memory is honored. If he's unwanted, however, he's nothing. He's an inconvenience dispatched with via medical procedure. His life has no worth and the law doesn't acknowledge his humanity.

It's curious the things our society agonizes over these days. If ever there was an instance of human beings missing the forest for the trees, the Hobby Lobby case is it. So long as the American people and the courts continue to ignore the most important questions, the law will continue to devolve into a convoluted mess, making a mockery of the vision that guided the founding of this once great nation.

Ken Connor is the Chairman of the Center for a Just Society in Washington, DC, the former President of the Family Research Council, and a nationally recognized trial lawyer.
 

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