Obamacare Comes Out Stronger Than Before

In a decision that surely disappointed far right politicians, a strong 6-3 majority today rejected a pitifully transparent and legally ridiculous effort to destroy Obamacare.

The King v. Burwell plaintiffs claimed that Congress intended to make healthcare insurance subsidies via tax credits available to Americans in certain states (ones where the state exchange was set up by the state itself) but not in others (states where the exchange was set up by the federal government).  Fortunately, six Justices refused to go along with this.

The majority opinion was written by Chief Justice Roberts, and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan.  They acknowledged that the phrase “established by the state,” if completely stripped of all context, could be interpreted to exclude exchanges established by the federal government.  But looking at congressional intent and the structure of the ACA as a whole, they concluded that – of course – Congress did not mean to deny subsidies to Americans in the federal-exchange states.

While the Court upheld the Fourth Circuit’s judgment against the anti-ACA activists, the legal reasoning isn’t exactly the same.  In fact, the Court closes off a future avenue of attack against Obamacare that the Fourth Circuit had left open.

Specifically, the Fourth Circuit had found the phrase in question ambiguous in meaning.  Therefore, it turned to how it was interpreted by the federal agency charged with interpreting it and carrying out its commands – in this case, the Internal Revenue Service.  Under a doctrine called “Chevron deference,” courts generally defer to agencies’ interpretations of ambiguous statutory commands as long as they are reasonable.  The Fourth Circuit noted that the IRS interprets the ACA to allow subsidies to be made available to people in all states, and it upheld that interpretation as reasonable.

Note that this approach could have left the ACA vulnerable to a future presidential administration proffering a different interpretation – i.e., the ones pushed by the anti-Obamacare plaintiffs and their conservative activist backers.

That threat would seem to be gone.  The Supreme Court noted that the subsidies are a critical component of the congressional plan to reform healthcare, and if it had wanted to delegate a question as critically important as that to a federal agency, it surely would have said so.  So Chevron deference wasn’t even a factor here.

The Court then looked at the statute as a whole and made the only obvious conclusion: Of course Congress did not mean to deny subsidies to people based on whether their state set up its own exchange or instead relied on the federal government to set it up.  That would have disrupted the entire system Congress was setting up:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them.  If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

Quoting an earlier case, the majority observed that “[w]e cannot interpret federal statutes to negate their own stated purposes."

Even today’s dissenters once acknowledged the majority’s interpretation.  The Chief Justice quotes their dissent in the first ACA case, where they argued the law was unconstitutional.  In that dissent (which Kennedy was also part of), they agreed that “[w]ithout the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”

The majority concludes that the context and structure of the ACA “compel” the interpretation assumed by Congress, the Obama Administration, and everyone else when the law was debated and passed: Subsidies are available in every state.

“Compel.”  And no Chevron deference.  That means a future conservative president cannot direct the IRS to revisit the subsidies issue and thus put Obamacare into a death spiral.  That puts the law on a stronger footing than it was under the Fourth Circuit’s ruling.

Given that the plaintiffs were confident of a 5-4 victory, today’s 6-3 defeat is not just a loss, it is a powerful rebuke.

But this case should never have been before the Court in the first place.  There was no circuit split (a contrary DC Circuit panel ruling had been vacated en banc), and the plaintiffs’ legal reasoning was laughable.  The fact that we went into this morning not knowing what the result would be shows just how much of the Court’s legitimacy the Court’s five conservatives have sacrificed in their effort to remake the law to fit their political ideology.  While today’s ruling is a great outcome, it should not blind anyone to the nature of the Roberts Court overall.

PFAW Foundation

Americans Will Know Who to Blame If the Roberts Court Wrecks Our Healthcare System

This op-ed was originally published at The Huffington Post.

Some Supreme Court cases are really tough ones, with important, difficult, and complex legal questions about constitutional meaning or statutory interpretation, where justices have to choose between two powerful and compelling arguments. Sometimes the court is called upon to resolve an issue that has divided the circuit courts. Other times there is a lower court ruling so at odds with logic or precedent that it needs to be reviewed and corrected.

And then there's King v. Burwell, the Affordable Care Act subsidies case being argued this week.

Those challenging the law have an extremely weak legal case, there is no split in the lower courts, and there is no clearly wrong lower court ruling that needs to be corrected. This is a meritless case that was ginned up by conservatives seeking to enlist the Supreme Court in their political efforts to destroy the ACA. That at least four justices voted to hear the case is ominous enough. But a victory for the challengers would make it more clear than ever that political considerations are infecting a majority of the court.

Some background: Section 1311 of the ACA directs states to establish health insurance exchanges, creating competitive markets in every state for people to buy affordable insurance no matter where they live. But Congress also recognized that states might choose not do this, so Section 1321 says that in those cases the federal government should set up the exchange instead. The purpose of doing this was to ensure that even if states declined to set up an exchange pursuant to Section 1311, fully functional stand-ins would exist. This is essential to the structure of the law: The financial model relies on competitive markets with affordable insurance being available in every state.

To ensure affordability, the law also establishes subsidies for people below a certain income level to make sure they can buy insurance, which is necessary for the entire structure of the ACA to work. One subsection of the law establishes some key definitions, including an "eligible taxpayer" who is entitled to these subsidies, and the main criterion is income level. Try as you might, you won't find anything there saying that eligibility is at all tied to where someone lives.

A separate subsection says how to calculate the amount of the subsidy. Bizarrely, the conservative opponents of the ACA say that it is here that Congress chose to establish an enormously important additional eligibility criterion that, for some reason, they didn't put in the eligibility section: You have to live in a state that has set up its own exchange, rather than in one where the state has allowed the federal government to set it up instead.

This strange interpretation of the ACA depends on a deliberate misunderstanding of the subsidy provision's stating that the amount is based on the monthly premiums for a policy purchased through an exchange "established by the state under [section] 1311" of the ACA. But to interpret this provision the way the anti-Obamacare activists do, we'd have to deliberately blind ourselves to how it clearly fits with the ACA as a whole.

So we're supposed to pretend that Congress didn't specifically empower the federal government to set up fully functional stand-ins for state exchanges in states that declined to create them. And we're supposed to think that Congress hid a critically important criterion for subsidy eligibility in a section on calculating the subsidy amount. And we're supposed to accept that Congress intended to undercut the financial viability of the law and thwart its central purpose of providing affordable health care to all. As D.C. Circuit Judge Harry Edwards wrote, "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble."

No one could possibly believe that. You can't possibly look at the text of the Affordable Care Act and interpret it in the way that its enemies have conjured up.

And as journalists like Glenn Kessler have pointed out, congressional Republicans who today insist that Congress intended for subsidy eligibility to depend on what state you live in were saying nothing of the sort when the law was being debated. Their statements at the time show they assumed subsidies would be available nationwide.

It is also clear that state legislators -- regardless of party -- deciding whether to set up their own exchanges never contemplated the possibility that choosing to let the federal government do it would deny much-needed subsidies to people in their state. In fact, that point is made quite effectively in an amicus brief authored by the Constitutional Accountability Center on behalf of members of Congress and state legislatures.

When this nonsensical lawsuit was heard at the Fourth Circuit, it was rejected by a unanimous panel of judges. In his concurring opinion, Judge Andre Davis wrote:

What [the ACA opponents] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear.

Yet when the ACA opponents appealed to the Supreme Court, at least four justices (the minimum required to grant certiorari) agreed to hear the case.

It would be nice to believe that the only reason was to issue a 9-0 ruling slapping down this lawsuit and condemning those who would abuse the court system by seeking to enlist federal judges in their political fights. Unfortunately, this is the Roberts court, a court with a history of bending the rules, twisting the law, and doing whatever it takes to get to an outcome beneficial to conservative and corporate interests. With cases like Citizens United, Hobby Lobby, Ledbetter, Shelby County, and so many others, a narrow 5-4 majority has made opponents of the Affordable Care Act think they could gin up a meritless case and carry the day.

If the Roberts Court chooses to sabotage millions of Americans' access to health care, the consequences will be catastrophic for many everyday people, and possibly fatal to some. While there may be Americans who weren't paying attention to some of the wrongly decided cases noted above, it is hard to imagine any American missing this one -- and not knowing exactly who to blame.

PFAW Foundation

PFAW Foundation Joins Amicus Brief in SCOTUS Case on Health Care Tax Subsidies

Yesterday PFAW Foundation joined the National Women’s Law Center, the law firm Hogan Lovells, and close to 70 other organizations in submitting an amicus brief in King v. Burwell, the pending Supreme Court case on tax subsidies for the Affordable Care Act (ACA). The brief notes that a decision in favor of those challenging the subsidies would threaten a central goal of the law: making access to health insurance possible for millions of people across the country.

The ramifications of a wrong decision in this case could be enormous, causing serious harm in the lives of people now relying on health insurance through the ACA. If the core tax subsidy provision were to be struck down, the brief points out, women of color would be especially hard-hit:

These tax credits are critical. Over 9 million women, who would otherwise go without affordable health insurance, are eligible to benefit from them, including a disproportionate number of women of color.

…The tax credits are not only critical to women’s health; they are critical to the ACA’s continued viability. Congress encouraged participation in the insurance market primarily through the careful interrelation of the individual responsibility provision, market reforms, and tax-credit provisions. Eliminate the tax credits, and the system unravels.

The amicus brief highlights the stories of many real women who depend on the tax credits to access needed health care:

Marilyn Schramm, 63, is a 26-year cancer survivor from Austin, Texas. She endured treatment for cervical cancer in her thirties and has experienced life-long complications from that treatment that have required surgeries since then. Marilyn retired several years ago. When her COBRA rights were exhausted, Marilyn was forced to go without insurance for six months because of her “preexisting conditions.” But in January 2014, Marilyn could finally purchase insurance on the federally-facilitated Exchange in Texas, with at least half of her premium covered by the ACA’s tax credits.

Marilyn has now been diagnosed with colon cancer; following surgery, she began chemotherapy this month. Her coverage depends on the ACA’s prohibition on excluding those with pre-existing conditions, and on its premium tax credits: With her modest retirement income, Marilyn is unsure whether or how she could pay her insurance premium without the tax credits.

As we have noted before, this case is a blatantly political attack intended to do serious damage to the Affordable Care Act. The millions of women and men across the country who rely on the ACA in order to access health care ranging from preventative screenings to cancer treatments deserve far better.

PFAW Foundation

DC Circuit's Nina Pillard Writes Ruling Upholding ACA Contraception Coverage

A three-judge panel of the D.C. Circuit today upheld the contraception coverage requirement of the Affordable Care Act as it applies to religious nonprofits. The unanimous opinion in Priests For Life v. HHS was written by Obama nominee Nina Pillard.

Like in Hobby Lobby, the attack was based on the Religious Freedom Restoration Act (RFRA), under which any law imposing a substantial burden on religious exercise can be sustained only if it is the least restrictive means of achieving a compelling government purpose. But unlike Hobby Lobby, this case involves religious nonprofits rather than for-profit corporations. The law does not exclude the employees of religious nonprofits from its protection, but it does allow an accommodation so the employees can get the coverage without their employers having to contract, arrange, or pay for it. Instead, the employers simply tell the insurer or the federal government of their objection, at which point the insurer must offer the coverage separately to employees who want it. But some religious nonprofits assert that even the accommodation violates their religious liberty.

In contrast to Justice Alito and his far right colleagues in Hobby Lobby, Pillard devotes significant attention to why the ACA contraception coverage requirement is so vitally important. She writes:

The contraceptive coverage requirement derives from the ACA's prioritization of preventive care, and from Congress' recognition that such care has often been modeled on men's health needs and thus left women underinsured. As discussed below, Congress included the Women's Health Amendment in the ACA to remedy the problem that women were paying significantly more out of pocket for preventive care and thus often failed to seek preventive services, including consultations, prescriptions, and procedures relating to contraception. The medical evidence prompting the contraceptive coverage requirement showed that even minor obstacles to obtaining contraception led to more unplanned and risky pregnancies, with attendant adverse effects on women and their families.

She then explains how the regulations don't impose a substantial burden on the employers' religious exercise. They have no role whatsoever in the provision of contraception that they oppose. In addition, it isn't the employer's use of the accommodation that triggers the women's right to coverage; their right was triggered by Congress when it passed the ACA. Pillard gets to the nub of this effort to use religious liberty as a sword to diminish the rights of others:

Religious objectors do not suffer substantial burdens under RFRA where the only harm to them is that they sincerely feel aggrieved by their inability to prevent what other people would do to fulfill regulatory objectives after they opt out. They have no RFRA right to be free from the unease, or even anguish, of knowing that third parties are legally privileged or obligated to act in ways their religion abhors.

This will not be the last word on the matter. The same issue is being heard in other courts around the country, and the final disposition will almost certainly be by the Supreme Court.

PFAW Foundation

Supreme Court Review of ACA Case Muzzles the DC Circuit

The full D.C. Circuit's expected rejection of a transparently political attack on Affordable Care Act subsidies won't happen, due to the Supreme Court's decision last week to hear King v. Burwell, a Fourth Circuit case raising the same issue. This afternoon, the D.C. Circuit cancelled oral arguments scheduled for next month and put the case on hold pending the Supreme Court's decision in King.

ACA opponents launched similar cases in four different circuits, apparently hoping for a circuit split that would encourage the Roberts Court to take the case and (they hope) destroy Obamacare. It turns out they didn't need to try nearly that hard: At least four Justices on the Roberts Court are so eager to take the case that they didn't wait for a circuit split, or even for more than one circuit court to have a chance to address the issue. All that was needed was one case.

Assuming judges in other two circuits follow the D.C. Circuit's lead and put their own cases on hold, then the Court's so quickly taking the King case will have shut down the possibility of additional circuit courts exposing just how legally weak and transparently political the attack on the ACA subsidies is.

PFAW Foundation

Ominous Sign from the Roberts Court on ACA Subsidies

The Supreme Court announced today that it will consider the appeal of a case that was designed by activists to take a wrecking ball to the Affordable Care Act. Since only one circuit has made a final ruling on the issue (a unanimous decision rejecting the ACA opponents' legally weak, transparently political argument), there is no split among circuit courts requiring resolution. In addition, the issue has yet to be decided by three additional circuits that have similar cases pending. So today's action begs the question: Why does the Roberts Court want to hear this case, and why now?

PFAW Foundation's Supreme Court 2014-2015 Term Preview discussed the possibility that the Court would address this issue. As we wrote then:

Opponents of the Affordable Care Act strategically launched lawsuits in four different circuits challenging federal subsidies for millions of Americans buying health insurance on federally-run exchanges. The circuits were apparently selected to maximize the possibility of a circuit split, which in turn would maximize the likelihood of getting the case heard by the Roberts Court, which (they hope) would deliver a crippling blow to Obamacare. Decisions have been reached in two of the circuits, although one has since been vacated.

Section 1311 of the ACA says states should set up insurance exchanges, while Section 1321 of the Act says the federal government can set one up if a state doesn't. Subsidies are available for less well-off people getting health insurance through an exchange, based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. The law's opponents hope to have the Supreme Court rule that Congress intended for subsidies to be unavailable to Americans purchasing insurance through the federally-established exchanges that the law calls for in cases where the state does not step in. In other words, the argument is that Congress intended to undercut the financial viability of the law and thwart its central purpose.

A unanimous panel of the Fourth Circuit rejected this wild claim in King v. Burwell. However, two far right judges on the D.C. Circuit formed a majority in a three-judge panel ruling actually agreeing with the Obama care opponents in Halbig v. Burwell. Dissenting Judge Harry Edwards recognized the lawsuit as a "not-so-veiled attempt to gut the Patient Protection and Affordable Care Act," noting that "[i]t is inconceivable that Congress intended to give States the power to cause the ACA to crumble." The full D.C. Circuit subsequently vacated the ruling and will consider the issue en banc, and most observers expect a ruling more like the Fourth Circuit's.

But even if that happens, there are still lawsuits percolating in Indiana (Seventh Circuit) and Oklahoma (Tenth Circuit), so the hoped-for circuit split may yet occur. If it does, the Roberts Court is almost certain to consider the issue. While the case is transparently political and legally weak, that did not stop the conservative Justices when it came to the Commerce Clause challenge to the individual mandate.

The D.C. Circuit case remains pending: Oral arguments won't even be held until mid-December. The Tenth Circuit won't hear oral arguments until next year, and the Seventh Circuit case is still at the district court level. If the Court had waited for a possible circuit split to take the case, it would not have been heard until the term ending in July of 2016. But at least four Justices (the number it takes to grant a certiorari petition) are apparently unwilling to wait.

Their hunger to hear this case is ominous.

PFAW Foundation

House Lawsuit Against Obama Undermined by Congressional Research Service Report

Although House Republicans managed to keep it a secret until now, their transparently political lawsuit against the president was found to be baseless in early September by the nonpartisan Congressional Research Service. Part of the Library of Congress, the CRS provides neutral legal and policy research and analysis to Congress, including committees and individual members. The Constitutional Accountability Center's Simon Lazarus and Elisabeth Stein got a copy of the September 4 CRS report, and it may explain why the lawsuit, though loudly trumpeted, has not actually been filed.

In an article entitled The Congressional Research Service Finds that Boehner's Lawsuit Has No Legal Basis, Lazarus and Stein write:

Now, three months after the party-line House vote to green-light the lawsuit, no complaint has yet been filed. If this stretched out delay means that Boehner has actually redirected his sue-Obama gambit toward oblivion, the reason may be this unnoticed six week old CRS report. … [The] report actually targets a single instance of alleged agency delay and exercise of enforcement discretion - the Obama Administration's adjustments of effective dates for the Affordable Care Act's so-called employer mandate to offer employees ACA-complaint health insurance or pay a tax. This delay happens to be the basis - the sole basis - for the legal action against the President that Boehner outlined in July. Although shrouded in twelve pages of fine print and protectively bureaucratic phraseology, the report's bottom line is clear: not merely are the legal underpinnings of the Republicans' planned lawsuit weak; the report turns up no legal basis - no "there" there - at all.

So who in Congress requested this analysis of the CRS?

CRS reports such as this one are generated in response to requests by members or committees of Congress, though the CRS does not make public the identity of the requester or requesters. This particular report - of which House Democrats were unaware until it appeared - bears the earmarks of an inquiry, requested by the Speaker or his allies, to give some color of legitimacy to their charges of rampant presidential illegality. Instead, the result validates the lawyers' maxim not to ask a question when unsure of the likely answer.

The Republicans came up with the lawsuit gimmick as a sop to their base, who regularly characterize President Obama as a lawless dictator. It is typical of the irresponsible behavior we have seen from the House since the 2010 election.

And this is the party that wants to take over the Senate in next week's elections.

PFAW

Fourth Circuit Unanimously Upholds Obamacare Subsidies

In stark contrast to this morning's split DC Circuit ruling, a unanimous panel of the Fourth Circuit today upheld the ACA's subsidies for Americans buying health insurance on federally-created exchanges. Judge Andre Davis (an Obama nominee) wrote a powerful concurring opinion blasting the illogical premise and blatantly political nature of the lawsuit:

Appellants' approach would effectively destroy the statute by promulgating a new rule that makes premium tax credits unavailable to consumers who purchased health coverage on federal Exchanges. But of course, as their counsel largely conceded at oral argument, that is their not so transparent purpose.

Appellants, citizens of the Commonwealth of Virginia, do not wish to buy health insurance. Most assuredly, they have the right, but not the unfettered right to decline to do so. They have a clear choice, one afforded by the admittedly less-than-perfect representative process ordained by our constitutional structure: they can either pay the relatively minimal amounts needed to obtain health care insurance as provided by the Act, or they can refuse to pay and run the risk of incurring a tiny tax penalty. What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. (internal citations removed)

Ouch.

PFAW Foundation

D.C. Circuit Old Guard Strikes Down Key Obamacare Subsidies Provision

A divided panel of the D.C. Circuit this morning struck down a key provision of the Affordable Care Act that allows subsidies for millions of people purchasing health insurance on government-run exchanges. The case is one of four cases on the same issue, strategically planted in various places around the country (Washington DC, Virginia, Oklahoma, and Indiana). The intent is apparently to get a split in circuit court opinions, so the Supreme Court will be more likely to take the case and, the proponents hope, deliver a crippling blow to Obamacare. (Unlike the millions of Americans who would be the real victims if this scheme succeeds, its proponents presumably have access to health insurance.) Today's ruling is the first among the four circuits.

Opponents of healthcare have an argument that might look appealing on the surface but doesn't pass the smell test. Section 1311 of the ACA says states should set up insurance exchanges. Section 1321 of the Act says the federal government can set one up if a state doesn't. The statute also says how to calculate the amount of a subsidy available for less well-off people getting health insurance through an exchange. It's based on the amount the person pays for the insurance s/he is enrolled in through an exchange "established by the state under [section] 1311" of the ACA. It's on the "by the state" language that the ACA's opponents hang their hat.

The anti-ACA people say the text is clear: The subsidy is unavailable to those who are getting their insurance in states where the federal government has set up the exchange. Judge Thomas Griffith and Senior Judge Raymond Randolph (nominated by Bush-43 and Bush-41, respectively) grabbed on to this argument, striking down subsidies for Americans living in states where politicians have chosen not to set up their own state exchanges.

Senior Judge Harry Edwards (a Carter nominee) dissented, pointing out that this was clearly not the intent of Congress. He explained the case quite plainly:

This case is about Appellants' not-so-veiled attempt to gut the Patient Protection and Affordable Care Act ("ACA").

...

Appellants' proffered construction of the statute would permit States to exempt many people from the individual mandate and thereby thwart a central element of the ACA. As Appellants' amici candidly acknowledge, if subsidies are unavailable to taxpayers in States with HHS-created Exchanges, "the structure of the ACA will crumble." It is inconceivable that Congress intended to give States the power to cause the ACA to "crumble." [emphasis added, internal citation removed]

Judge Edwards continues, shattering the majority's argument that their interpretation fits with congressional intent:

Apparently recognizing the weakness of a claim that rests solely on [one particular section of the Affordable Care Act], divorced from the rest of the ACA, Appellants attempt to fortify their position with the extraordinary argument that Congress tied the availability of subsidies to the existence of State-established Exchanges [rather than federal ones] to encourage States to establish their own Exchanges. This claim is nonsense, made up out of whole cloth. There is no credible evidence in the record that Congress intended to condition subsidies on whether a State, as opposed to HHS, established the Exchange. Nor is there credible evidence that any State even considered the possibility that its taxpayers would be denied subsidies if the State opted to allow HHS to establish an Exchange on its behalf.

The majority opinion ignores the obvious ambiguity in the statute and claims to rest on plain meaning where there is none to be found. In so doing, the majority misapplies the applicable standard of review, refuses to give deference to the IRS's and HHS's permissible constructions of the ACA, and issues a judgment that portends disastrous consequences.

Those disastrous consequences are not the intent of Congress, but they are the intent of far right zealots.

The Justice Department has already said it will seek an en banc review by all eleven judges of the D.C. Circuit, where President Obama's opponents have less likelihood of winning than would have been the case a year ago. In case you were wondering why Senate Republicans pulled out all the stops last year and declared they would not allow President Obama to fill any of the three then-existing vacancies on the D.C. Circuit, cases like this are why. The last thing they wanted was a balanced, non-ideological court.

For anyone who cares about healthcare, courts matter.

PFAW

Jamie Raskin Discusses Hobby Lobby and Corporate Religion

Thursday afternoon, PFAW hosted a special member telebriefing on Sebelius v. Hobby Lobby Stores, Inc., a critically important case being argued before the Supreme Court next week that represents the overlap of two important issues: attacks on women's health, and the radical expansion of constitutional "rights" for artificial and increasingly powerful for-profit corporations.. The briefing featured senior fellow Jamie Raskin, who is a respected constitutional scholar at American University and a leading progressive Maryland state senator. Jamie previewed a new report from our affiliate PFAW Foundation: The Gospel of Citizens United: In Hobby Lobby, Corporations Pray for the Right to Deny Workers Contraception.

In Hobby Lobby and a companion case, the Affordable Care Act's contraception provision is being challenged by for-profit corporations regulated by the Act, as well as by the individuals who own the companies. One of the astonishing facets of this case is that for-profit corporations are actually arguing that they – the corporations themselves, totally separate from their owners – have religious liberty rights that are protected by law.

How did we get to a point where for-profit corporations are claiming religious beliefs and rights and not being laughed out of court? Jamie described how Citizens United was a watershed, completely transforming our constitutional jurisprudence and opening the door to Hobby Lobby's arguments. He noted the Tenth Circuit's conclusion that since corporations have First Amendment political speech rights, it follows that they also have religious rights.

Jamie pointed out that no court has ever found that ordinary for-profit corporations have religious rights. And that's what Hobby Lobby is: a profit-making corporation operating more than 500 arts-and-crafts stores with more than 13,000 employees. Quoting Justice Stevens' dissent in Citizens United, Jamie pointed out that "corporations have no consciences, no beliefs, no feelings, no thoughts, no desires." Yet just as that case empowered corporate CEOs to use the corporation's treasury to affect elections, Hobby Lobby threatens to empower corporate officials to impose their own religious beliefs on company employees. In both cases, the power of ordinary people is diminished, as they become more and more subject to the power of corporations.

Jamie also discussed how the implications of Hobby Lobby go far beyond this particular case. If corporations are "ensouled" and found to have religious liberty rights, it opens the door to letting them opt out of anti-discrimination and labor laws their owners don't like. And while Hobby Lobby is a family-owned company where the family ascribes their religion to the corporation, how would you determine the "religion" of a widely-held company like Exxon? Jamie pointed out that the law sees both – the family owned business and the large multinational corporation -- the same.

What can regular people do about all this? PFAW Vice President Marge Baker pointed out that most people don't even know about the dangerous power grab by corporations that the five far-right Supreme Court justices are assisting. It's important to educate our friends, colleagues, and family members about how frequently and dangerously the Supreme Court is bending the law in order to hand power to already-powerful large corporations. And elections matter, because the judges who make these decisions on the Supreme Court and every federal court in the nation are nominated by the president and confirmed by the Senate. With control of the Senate at stake in this year's elections, the results this November will have an enormous impact on the courts.

PFAW