Boston University School of Law
When a closely-divided U.S. Supreme Court decided Burwell v. Hobby Lobby (2014), upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (“contraceptive mandate”) of the Patient Protection and Affordable Care Act of 2010 (“ACA”), sadly missing in the flurry of commentary was the late Ronald Dworkin’s assessment. This essay asks, “What would Dworkin do?,” if evaluating that case as well as Wheaton College v. Burwell, in which, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted Wheaton College emergency relief from complying with ACA’s accommodation procedure for religious nonprofit organizations who object to the contraception mandate as substantially burdening religious Free Exercise. This essay addresses these questions about ACA and corporate conscience in light of Dworkin’s call, in Religion Without God, to shift from a special right of religious freedom, protected by the Religious Freedom Restoration Act, to a general right of ethical independence. Dworkin only briefly discussed the place of exemptions from general laws in that reorientation, and so this essay considers the form a Dworkinian analysis might take. It examines the different arguments made in Hobby Lobby by the parties, friends of the court, and the justices about whether a for-profit corporation has a right to the free exercise of religion and whether ACA burdens it. Given Dworkin’s sharp criticisms of the idea of corporate personhood in Citizens United v. Federal Election Commission, in the context of political speech, the essay asks whether he would have been similarly critical of corporate personhood for a family-owned, closely held business, given the concern for female employees’ reproductive liberty expressed in Justice Ginsburg’s Hobby Lobby dissent. The essay then asks what insights Dworkin’s work sheds on pending challenges to ACA’s accommodation provision as not accommodating enough.
Linda C. McClain,
Corporate Conscience and the Contraceptive Mandate: A Dworkinian Reading,
Boston University School of Law, Public Law Research Paper Series
Available at: https://scholarship.law.bu.edu/faculty_scholarship/228