Saturday, October 07, 2017

Can Publicly Held Corporations Have Religion But Not Morals?

As previously reported, yesterday the Trump Administration issued Interim Final Rules that expand exemptions from the Affordable Care Act contraceptive coverage mandate.  The Interim Rules create exemptions for entities with religious or moral objections, but create an interesting distinction between business entities asserting religious objections and those asserting moral ones.  A religious objector to furnishing contraceptive coverage may be either "A closely- held for-profit entity," or "A for-profit entity that is not closely held." (Release at pg. 160-161).  On the other hand, the new exemption for businesses with moral objections to furnishing contraceptive coverage includes only "A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934)." (Release at pg. 98).  The Release (at pp. 51-56), in a lengthy explanation, asks for comments during the comment period on whether this distinction should be retained, saying in part:
The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so....