CORPORATE CONSCIENCE AND THE CONTRACEPTIVE MANDATE: A DWORKINIAN READING

Abstract

When this essay appears in print, it will be two years since the death of legal philosopher and constitutional law scholar Ronald Dworkin. One recurring reminder of the magnitude of that loss is the absence of Dworkin's regular, insightful essays for the New York Review of Books analyzing significant US Supreme Court decisions. Thus, when, last term, a closely divided (5–4) Court released its much-anticipated decision in Burwell v. Hobby Lobby, upholding a challenge by three for-profit corporations to the contraceptive coverage provisions (the so-called contraceptive mandate) of the Patient Protection and Affordable Care Act of 2010 (ACA), sadly missing in the flurry of commentary was Dworkin's assessment of the case. Readers of this journal may perhaps appreciate the allusion when I say that the decision prompted me to wonder, “What would Dworkin do?” That same question arose again when, on July 3, 2014, in Wheaton College v. Burwell, over a strong dissent by Justices Sotomayor, Ginsburg, and Kagan, the Court granted the emergency request of Wheaton College to be relieved from complying with the ACA's accommodation procedure for religious nonprofit organizations that object to contraceptive coverage on religious grounds, even before the lower courts had ruled on the merits of the college's claim.