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The Leading Edge: Corporations are Persons

November 12, 2013

The Story: “Appeals Court Blocks Obamacare Contraceptive Mandate,” by Andrew Harris and Joel Rosenblatt writing at

The Lead:

The government focuses on the wrong thing – the employee’s use of contraception – and addresses the wrong question – how many steps separate the employer’s act of paying for contraception coverage and an employee’s decision to use it. . . . This argument purports to resolve the religious question underlying these cases: Does providing this coverage impermissibly assist the commission of a wrongful act in violation of the moral doctrines of the Catholic Church?  No civil authority can decide that question.

Why it Matters:  The article I linked to above is not the actual source for the quote; it’s just a reasonable recounting of the story.  The quote actually came from the opinion of the 7th Circuit Court of Appeals as authored by Judge Sykes.  You should be able to access the entire opinion (64 pages by the 2-judge majority and the balance of the 154 pages filled by the dissent of Judge Rovner) by clicking here.

Maybe I’m just the legal geek on this page, but this is a fascinating opinion with far-reaching impact.  It’s interesting, firstly, just because of some inside baseball you may not pick up on.  In this opinion, the court really smacks the government’s lawyers.  In addition to the quote above, the court reminds readers how often it gave them opportunity to address a particular issue, but they either refused or failed to answer.  And, when the lawyers did answer, they must have been trying their lawyerly best to avoid the question.  I picked up on that from the court’s statement on page 63, “That’s just an evasion . . .”  Ouch.

But, I digress.  The real reason this matters is that, for the first time, we have a court striking down the contraceptive mandate – that portion of Obamacare that requires every business that provides health insurance to likewise fund medications that could medically induce an abortion – for both the individual owner and the business itself.  That is, this is the first court to connect both businessman and business, giving each the right to claim protection under the law as a, “person.”


This is important, since the government has repeatedly argued – and argues still – that corporations have no personhood.  As such, they argue (I think wrongly) that the corporation can be made to act in ways in which the owner may find objectionable and immoral for him to personally act.  In this opinion, the court has effectively a corporation is the alter-ego of the businessman that owns and operates it and, as such, has the right to not be compelled by its government to do that which it finds morally objectionable.

Maybe you’re not a business owner and so think this does not matter much to you.  Think again.  For one thing, you’re likely employed by a business or in some other manner find yourself connected to a business, if only as a patron of a business from time to time.  These sorts of philosophical questions have a practical effect on your life.

But, beyond that, your church is likely a corporate form of some kind.  Some are actually incorporated nonprofit corporations, others are merely “unincorporated associations” that have the same feel and function of a corporate entity.  As such, if a “secular business” may be compelled to violate that which the owners of that business find morally egregious, then so to might your church.  Certainly, that may be years in the future, but just because it may take time to get there does not negate the possibility.

This reminds us that often battles over gender (for that is the central front in the battle over the “contraceptive mandate”) often impact multiple levels of culture, including religious liberty.

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