The New York Times editorial board is opposed to granting such objections:
The Obama administration’s rule requiring employer health plans to cover birth control without a co-payment has given rise to a slew of lawsuits by private companies claiming the mandate attacks religious freedom. Three federal appeals courts have ruled on the issue, with two correctly rejecting that view as without legal foundation. Given the conflicting rulings, it is a good bet the Supreme Court will agree to address this issue in the next term. ...
Allowing employees to make independent decisions to obtain contraceptives does not violate anyone’s religious freedom. If the Supreme Court takes up these cases, it should soundly reject the warped view that some employers can get out of complying with the new law, and in effect use their religious beliefs to discriminate against women.
Fine. The Times is entitled to its opinions. But it is not entitled to lie. Yet that is more or less what it did when it opined that "there is no exemption for owners of private for-profit businesses who simply don’t want to comply with a general law because of their personal views." Granted, the Times is technically correct, because it is referring to the implementing Obama administration regulation in question, which in fact contains no such exemption. But the rule did not need to do so. The Religious Freedom Restoration Act provides precisely such an exemption:
In recent months, lawsuits challenging the Patient Protection and Affordable Care Act’s (“ACA”) requirement that providers of health insurance pay for contraceptives and abortifacient drugs have attracted attention from legal commentators, the news media, and even the Supreme Court. Plaintiffs argue that the contraception mandate violates the Religious Freedom Restoration Act (“RFRA”) by imposing a substantial burden on their religious exercise without meeting strict scrutiny requirements. Early circuit court decisions at the preliminary injunction phase foreshadowed a circuit split on the issue, with some siding with the plaintiffs, and others siding with the government. While this Note was going to print, the Tenth Circuit issued a complicated en banc decision in Hobby Lobby Stores, Inc. v. Sebelius, that reversed a lower court ruling in favor of the government. Although that case signaled a victory for the plaintiffs, the fractured nature of the decision only underscores the likelihood that this issue will ultimately land on the Supreme Court’s doorstep.
Hobby Lobby highlights a novel issue — whether for-profit corporations can seek exemptions from the ACA by invoking RFRA. This Note will consider the arguments put forward by the majority in Hobby Lobby, as well as those put forward by the dissenters. Moreover, this Note will address additional textual and contextual factors that courts have failed to consider, ultimately concluding that RFRA draws no distinction between for- and nonprofits. Policy arguments against allowing for-profits protection under RFRA are then considered. In the end, if courts will stay true to RFRA’s text and context, they will be led to two ultimate conclusions. First, for-profits are within RFRA’s auspices. And second, the sacrifice of conscience is not the cost of incorporation in America.
Christiansen, Jeremy M., 'The Word Person...Includes Corporations': Why the Religious Freedom Restoration Act Protects Both For- and Nonprofit Corporations (August 30, 2013). Utah Law Review, Forthcoming. Available at SSRN: http://ssrn.com/abstract=2318499.
Moreover, as I have argued, even if the courts reject that argument, the reverse veil piercing doctrine remains available as a tool for requiring just such an exemption.
And so the NY Times is caught in a sleight of hand. Yes, what it said is technically true, but it is still misleading when considered in a broader sense.
