Corporate Takeover: A New Clash in the Old Struggle Between Corporate Rights and Public Health

Authors

John J. LoCurto, St. Mary's University School of LawFollow
Rachel Radke
Xyruz Villariz
Jasmine Ann Castillejos

Journal Title

Journal of Health and Life Sciences Law

Volume

19

Issue

1

First Page

45

Document Type

Article

Publication Information

2024

Abstract

Corporations have used the federal courts to secure many of the same constitu­tional rights as individuals. As corporate rights proliferate so does corporate power to influence and resist laws that protect the public. One such law is the Patient Protection and Affordable Care Act—legislation that reformed health insurance coverage with important implications for public health.

The ACA has been a frequent target of litigation. Recent corporate lawsuits have invoked the Religious Freedom Restoration Act to challenge the ACA’s preventive care mandate, which requires health plans to cover preventive services without cost sharing. In Braidwood Management, Inc. v. Becerra, a for-profit corporation claimed that the mandate violated its right to free exercise of religion by forcing the company to offer employee health insurance that covered pre-exposure prophylaxis (PrEP), drugs that reduce the risk of HIV transmis­sion. The company asserted that PrEP promotes homosexuality, promiscuity, and drug abuse, and that covering PrEP made the company complicit in such behaviors in derogation of its religious beliefs. The court accepted this argument and exempted the company from having to cover PrEP.

Braidwood relied on Burwell v. Hobby Lobby Stores, Inc., an earlier RFRA case that limited the ACA’s contraceptive mandate on religious exercise grounds. There the Supreme Court equated corporate and individual rights and divorced both from any corresponding responsi­bility to the general welfare. Braidwood extended Hobby Lobby and augmented the corpo­rate right to free exercise. The decision may reduce PrEP coverage and lead to avoidable HIV transmissions. The decision also raises questions about the extent to which corporations can now assert religious objections to deny other services under the ACA and, more generally, to resist compliance with laws that affect population health. Braidwood is most concerning, however, because it bolsters a vision of corporate rights that exist without corresponding corporate duties to employees, communities, or the common good.

Public health advocates must embrace new strategies to offset the power that the corporate right to free exercise confers. Lawyers, too, have a role to play, both in court (by, for example, developing and presenting evidence that enlivens epidemiological data), and outside it (for instance, by supporting the development of evidence-based policymaking). Ultimately, however, the tension between corporate interests and public health will only be mitigated by forging a more balanced civic discourse that recognizes the normative value of public health while respecting legitimate corporate interests. Achieving that goal will require a concerted, whole-of-society effort.

This article begins with a discussion on corporate rights and personhood and summarizes the connection between them. Personhood has weathered sustained criticism of late. After Citizens United v. FEC—in which the Supreme Court struck down a campaign finance restriction and granted corporations a First Amendment right to expend general treasury funds to support and oppose political candidates—battlelines hardened around whether a corpora­tion is a person. This article submits that the question is not whether corporations are persons—like it or not, they are—but what kind of persons corporations are. Multiple theories of the corporation exist. The theory that one accepts has normative consequences for corpo­rate rights and public health. And more significantly, while personhood warrants scrutiny, it is the absolute nature of corporate rights that presents the greater threat to public health.

The next section, The Road to Braidwood, turns to the relevant laws. It reviews the ACA’s preventive care mandate, then discusses RFRA, and culminates by examining how the Supreme Court applied these laws in Hobby Lobby. The Court’s decision set the stage for Braidwood and opened the newest front in the long struggle between corporate rights and public health.

The third section in this article spotlights Braidwood. When it invalidated the PrEP mandate, the district court extended the corporate right to free exercise beyond Hobby Lobby. This section surveys the factual and legal bases for the court’s decision, dissects its analysis, and explores the public health ramifications of the burgeoning corporate right to religion.

Finally, the last section, Taking a Page from the Corporate Playbook, concludes by offering ideas for balancing the competing values at stake in Braidwood. Corporate non-mar­ket strategies may provide a useful template for public health to follow in this regard.

Recommended Citation

John J. LoCurto, Rachel Radke, Xyruz Villariz, and Jasmine Ann Castillejos, Corporate Takeover: A New Clash in the Old Struggle Between Corporate Rights and Public Health, 19 J. Healt. Life Sci. L. 45 (2024).