SCOTUS Blog reports that:
Two of the cases [on which the Court granted cert] –Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Store v. Sebelius – were consolidated for one hour of oral argument, during which the Court will consider challenges to the Affordable Care Act’s requirement that employers provide their employees with health insurance that includes access to birth control. ... Lyle covered all four grants for this blog yesterday; Matthew Porny did the same for JURIST. Coverage focused on the grants in the contraceptive mandate cases came from Nina Totenberg of NPR, Jess Bravin of The Wall Street Journal, Bill Mears of CNN, and Richard Wolf of USA Today. In an op-ed for CNN, Elizabeth Wydra urges the Court to uphold the mandate, arguing that the lower courts’ decisions striking it down turn “first principles of religious freedom, as well as fundamental tenets of corporate law, on their head.” And at Federal Regulations Advisor, Leland Beck predicts that, although the Court “can reach the constitutional issue of whether Obamacare is inconsistent with the First Amendment,” the cases are “more likely to be decided on narrow regulatory and statutory grounds.”
Which seems to me to be a perfectly good reason for reminding folks that I have offer a different approach to the problem, which modesty prevents me from suggesting that the Supreme Court should adopt, in my article Using Reverse Veil Piercing to Vindicate the Free Exercise Rights of Incorporated Employers, 16 Green Bag 2d 235 (2013):
Reverse veil piercing (RVP) is a corporate law doctrine pursuant to which a court disregards the corporation’s separate legal personality, allowing the shareholder to claim benefits otherwise available only to individuals. The thesis of this article is that RVP provides the correct analytical framework for vindicating certain constitutional rights.
Assume that sole proprietors with religious objections to abortion or contraception are protected by the free exercise clause of the First Amendment and the Religious Freedom Restoration Act (RFRA) from being obliged to comply with the government mandate that employers provide employees with health care plans that cover sterilizations, contraceptives and abortion-inducing drugs. Further assume that incorporated employers are not so protected. This article analyzes whether the shareholders of such employers can invoke RVP so as to vindicate their rights.
At least one court has recognized the potential for using RVP in the mandate cases, opining that these cases “pose difficult questions of first impression, including whether it is “possible to ‘pierce the veil’ and disregard the corporate form in this context.” The court further opined that that question, among others, merited “more deliberate investigation.” This article undertakes precisely that investigation.
Invoking RVP in the mandate cases would not be outcome determinative. Instead, it would simply provide a coherent doctrinal framework for determining whether the corporation is so intertwined with the religious beliefs of its shareholders that the corporation should be allowed standing to bring the case. Whatever demerits RVP may have, it provides a better solution than the courts’ current practice of deciding the issue by mere fiat.
