The Corporate Conscience: A Historical Review of Religious Freedom

Abstract

The Patient Protection and Affordable Care Act mandates that certain employers provide insurance coverage for all FDA-approved contraceptive methods and sterilization procedures. The religious convictions of several for-profit corporations forbade them from providing contraceptives in their health insurance plans. Under the Act, noncompliance can lead to substantial financial penalties. A flood of lawsuits resulted from this moral conflict as corporations with religious underpinnings sought injunctions against the Department of Health and Human Services from enforcing the mandate. In reviewing these claims, federal circuit courts have split on whether for-profit corporations may assert free exercise rights under the First Amendment. In the past, courts have focused on the “historic function” of a constitutional liberty to determine whether it was “purely personal” or could be exercised by a corporation. But this analysis has largely been absent in a recent challenge to the health care law, where the emphasis has instead been placed on the technicalities of the corporate form, rather than an examination of religious liberty. Because the development of the First Amendment informs our understanding of its modern expression, greater attention should be given to the historic function of the Free Exercise Clause.