Contraception mandate case argued at US Supreme Court

Washington D.C., Mar 25, 2014 / 11:03 am

The Supreme Court heard oral arguments Tuesday in a challenge to the Affordable Care Act touching on the federal government's compelling for-profit companies to provide coverage for contraceptives despite owners' religious objections.

Hobby Lobby co-founder Barbara Green, whose business is one of the plaintiffs in the case, said her family is thankful that the Supreme Court heard their case, adding "we prayerfully await the justices' decision."

"The choice that the government has forced on us is out of step with the history of our great nation founded on religious freedom," she said March 25. "We believe that no American should lose their religious freedom just because they open a family business."
 
The court heard two appeals, from the Pennsylvania-based Conestoga Wood Specialties, founded and owned by a Mennonite family, and the Oklahoma-based Hobby Lobby, whose owners are evangelical Christians. Both business' owners have religious and moral objections to aspects of the mandate.

At a news conference following the arguments, Anthony Hahn, Conestoga's CEO, said, "We never thought we'd see a day when the government would tell our family we couldn't run our business in a way that affirmed the sanctity of human life, when government would force us to be complicit in the potential destruction of human life."

"But sadly that day has come. Rather than sacrifice our obedience to God, my family, the Green family, and many others have chosen to take a stand to defend life and freedom against government coercion."

Former U.S. Solicitor General Paul Clement argued before the court on the companies' behalf, saying they are protected under the Religious Freedom Restoration Act.

Following the arguments, he commented that "the court took obviously took these cases very seriously," adding that " the undamental problem with the government's program is that an agency has provided this accommodation or this exemption for this subset of the employers protected by the mandate and a subset of the persons protected by RFRA, but when Congress passes a statute for every person in the country, it is not for the agency to only provide protection for a chosen few."

One of the constitutional issues in the case is whether constitutional protections for religious freedom apply only to individuals or to businesses as well.

Both companies object to being forced to provide employees with some drugs that can cause very early abortions. Non-compliance with the mandate results in fines of up to $100 per day per employee: Hobby Lobby has 13,000 workers, meaning the fine could reach $475 million per year.

Justice Anthony Kennedy -- often the swing vote in contentious cases -- asked whether the government's reasoning would mean "a profit corporation could be forced in principle to pay for abortions."

Chief Justice Roberts commented that the companies say the mandate already does just that.

Justice Samuel Alito pressed Solicitor General Donald Verrilli, representing the government, to explain what about a for-profit corporation is "inconsistent with the free exercise clause" of the First Amendment.

Justice Elena Kagan said an exemption from the mandate might invite challenges to laws such as Social Security and family leave mandates, suggesting that "you would see religious objectors coming out of the woodwork."

Kennedy appeared to focus on how to balance religious interests of the companies with female employees' legally required access to contraceptives.

Lori Windham, senior counsel for the Becket Fund for Religious Liberty and counsel for Hobby Lobby, said the case shows that the government is working to "strip this family business of its religious rights" in "a gross violation of the Religious Freedom Restoration Act and the First Amendment."

The Alliance Defending Freedom represents the Hahn family, the owners of Conestoga Wood Specialties.

The legal group's senior counsel David Cortman said that the constitution "guarantees the highest form of respect to the Hahns' freedom … the government must prove why disregarding that freedom is somehow justified."

The legal group has filed a brief with the Supreme Court which said the government's argument "turns ordinary notions of liberty upside down" by contending that the company owners "harm the 'freedom' of third parties simply by not buying them abortifacients."

"Citizens are already free to buy birth control for themselves and the government often subsidizes those purchases. Yet in the government's view that is not enough. For the government, coercion is the new 'freedom'," the brief said.

Alliance Defending Freedom senior legal counsel Matt Bowman said Americans' constitutionally protected liberties include "freedom from government attempts to force them to pay for other people's abortion pills."

The American Center for Law and Justice filed an amicus brief asking the Supreme Court to reject the mandate that "substantially burdens" the free religious exercise of business owners and does "a very real and palpable injury" to them.

Jay Sekulow, chief counsel of the legal group, said that the outcome of the case "will send a powerful message about religious freedom to corporate America."

A ruling on the case is expected by late June.

The Obama administration's narrow exemption to the mandate applies only to churches and houses of worship. Nonprofits with religious affiliations, including hospitals, religious schools, universities, and charitable employers such as the Little Sisters of the Poor, must offer the coverage or arrange for it to be provided through a third-party insurer. Many Catholic clergy and ethicists say that the putative accommodation is still morally unacceptable.

House Speaker John Boehner (R-Ohio) released a statement ahead of the oral arguments Wednesday, saying, "no citizen should be compelled to violate their convictions, let alone be punished for refusing to do so."

"The choice these men and women face – between paying fines that could cripple their businesses and dropping employee insurance altogether – imperils the jobs, livelihoods, and health care of millions of Americans. The government has placed a terrible burden on charities, universities, hospitals, and family-owned businesses – one our founders promised they and we would never have to bear."

"Religious freedom is not for some people under some circumstances; it is for one and all," Boehner continued, voicing hope that the court will "reverse this attack on religious liberty."

There have been 61 federal court rulings on the religious freedom claims against the mandate, Alliance Defending Freedom reports; among the litigants against the mandate is the Eternal Word Global Catholic Network.

Of the rulings handed down thus far, 54 have secured injunctions, while seven did not. Of the 41 cases involving family or religious-run businesses, 35 successfully secured legal injunctions against enforcement of the mandate. Of the 20 cases involving religious nonprofits, only one lawsuit filed by the University of Notre Dame was refused an injunction.