HHS Mandate Oral Argument March 25

Next Tuesday, Mar. 25, the U.S. Supreme Court will hear oral arguments in the cases Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius., two extremely important cases about freedom of conscience. Hobby Lobby and Conestoga Wood are two of the many cases in which closely held businesses and their owners are challenging the so-called “HHS mandate,” the rule the Obama Administration adopted which (with exceptions) requires businesses to provide their employees with health insurance that covers all FDA-approved “contraceptives,” including not just birth control but also sterilization and certain abortifacient drugs and devices. The owners of Hobby Lobbyand Conestoga Wood say they cannot in good conscience cover drugs and devices that can take the life of a newly conceived human baby. They have sued under the federal Religious Freedom Restoration Act (RFRA), seeking relief against the HHS mandate.

  The ACLJ is no stranger to this kind of litigation. In fact, we filed the very first challenge by a for-profit business to the HHS mandate, and have filed several similar cases since then. While we have so far won all of our own challenges, we have watched the Hobby Lobby and Conestoga Wood cases with interest (and have assisted with both cases, including by filing friend-of-the-court briefs and helping out with preparations for the oral arguments). Victory in the Supreme Court in these cases would likely cement our wins, while a loss for Hobby Lobby and Conestoga Wood could be a serious setback.

  Meanwhile, in two cases the ACLJ brought (Gilardi and Korte), the Obama Administration is petitioning the Supreme Court to overturn our victories against the HHS mandate. We have filed briefs in response, and the points we made in our responses bear directly upon the pending arguments inHobby Lobby and Conestoga Wood. A brief summary follows.

i. Gilardi

  In Gilardi, we tackled the federal government’s attempt to depict the HHS mandate cases as being about employers trying to “deny” their employees certain benefits. As we point out, this is “loaded phrasing.”

Employers “deny employees” things all the time. A dress code “denies” the freedom to dress as one chooses. Fixed work shifts “deny” employees the freedom to work the hours they choose. Office layouts “deny” employees the space and furniture arrangements they might prefer. Finite salaries “deny” employees money beyond their pay. Employers may “impose” these various working conditions as a matter of financial planning, or personal taste, or corporate philosophy, to list just some possible motivations. That religious beliefs—like personal moral values or a sense of fairness—might also motivate the determination of work conditions and compensation—for better or worse, from the employees’ perspective—is not remarkable. Moreover, under the government’s approach, the federal government itself “denies” employees guaranteed coverage of preventive services not included in the HHS mandate [such as autism therapy and adult dental benefits].

To be sure, workers might prefer being able to run their jobs as if they were the boss. But that does not mean the government can coerce the employer anyway it chooses, even if it tramples on religious freedom. Moreover, the government’s argument would essentially spell the end of religious freedom:

The very notion of free religious exercise “denying” or “imposing upon” third parties is a charge that knows no limits. The employee who refuses a Sabbath shift “imposes” upon his employer or, perhaps, co-workers who need to fill in. The parent who removes his or her Amish child from formal high school education “denies” that child the instruction that would otherwise be given. [Yet the Supreme Court has upheld religious freedom in both these cases. Other examples:] The owners of a kosher deli who refuse to sell pork “deny” their patrons the option of a ham sandwich. And the physician who refuses to perform a “female circumcision [genital mutilation],” or an unnecessary amputation [believe it or not, some disturbed persons actually request this], each “impose upon” the would-be recipient (or the parents of same) of those procedures. . . . [T]reating religious exercise as presumptively suspect because it may affect third parties makes no more sense than treating free speech, freedom of association, or Fourth Amendment rights [to freedom from unreasonable searches and seizures] as presumptively suspect because they, too, may affect third parties in ways they do not want.

In other words, to say that the exercise of religious freedom might have an impact on others is to say no more than that all our actions may affect others. Yes, if the effect is sufficiently serious (like killing an innocent person in child sacrifice), the law can step in and say “No.” But that goes for all liberties, not just religious freedom.

ii. Korte

  In our Supreme Court filing in Korte, we address the remaining question, namely, does the government have an overriding interest in forcing objecting employers to subsidize coverage of morally repugnant “contraceptives” (including, as noted above, drugs and devices that can cause early abortions)? As we note, “the government bears the burden of demonstrating a compelling interest to support its restriction on religious exercise” (emphasis added). The notion that the government meets that test with the HHS mandate is “fanciful,” we explain, for several reasons.

  First, the statute that authorizes the HHS mandate – the Patient Protection and Affordable Care Act (PPACA, known popularly as Obamacare) – does not even require birth control coverage. Instead, PPACA refers generally to preventive services for women, leaving it to the Department of Health and Human Services to fill in the blanks with regulations. Obviously, it is difficult to argue that something is so necessary as to be “compelling” when its inclusion was left as an option for bureaucrats.

  Second, the HHS mandate is riddled with exceptions. No birth control coverage is required for so-called “grandfathered” plans, for small employers, for religious employers, and even for large employers that decline to provide employer health coverage at all. As we explain, this potpourri of exceptions “profoundly undercuts the government’s claim that its interest is compelling. One does not outlaw arson, for example, but then leave exceptions for setting fire to small businesses, churches, or buildings that have not been substantially modified within the last two years.”

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  If the government can win the Hobby Lobby and Conestoga Wood cases with such flimsy arguments, then religious freedom becomes a false assurance. The government will feel free, for example, to require businesses to provide abortion coverage – or abortion procedures themselves, in the case of hospitals and physician groups. There will be little left to stop the Obama Administration, or any future Administration, from running roughshod over conscience in the pursuit of its political goals. May the Supreme Court vigorously turn back this assault on the fundamental right to religious freedom!