On June 30th, the last day of the session, the Supreme Court of the United States announced its decision in the closely watched Hobby Lobby case. The original case name of Sebelius v. Hobby Lobby was changed to Burwell v. Hobby Lobby with the recent appointment of Sylvia Mathews Burwell as the new Secretary of Health and Human Services (HHS). By a 5-4 vote, the Supreme Court ruled in favor of Hobby Lobby, determining that the Affordable Care Act’s Contraception Mandate violated their rights under the Religious Freedom Restoration Act (RFRA).
This is a huge victory for Hobby Lobby, Conestoga Wood Specialties, and Mardel Christian Bookstores, but it is an even greater victory for all Americans who value their religious freedom. Unfortunately, many on the left who fought this decision are already trying to demonize the supporters of Hobby Lobby by distorting the facts of the case. Therefore, it is imperative that we review just what the court decided and what they didn’t decide.
First, the Court did not declare this decision on the basis of the U. S. Constitution. This decision was based on the RFRA, a law passed in 1993 by a Democratic Congress and signed into law by Democratic President Bill Clinton. This law stipulates that “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person . . . is the least restrictive means of furthering a compelling governmental interest.”
John Daniel Davidson, writing in National Review Online explains the purpose of the RFRA:
“The purpose of the RFRA was to create a statutory right where a constitutional right doesn’t exist – or, at least, is no longer held to exist. The Court’s 1990 ruling in Employment Division v. Smith upended 30 years of precedent and returned the Court to a standard it first applied in Reynolds v. United States, in 1878. In that case, the Court found that a Mormon polygamist in the Utah Territory could not claim that his first Amendment right to free exercise of religion justified his violation of a federal anti-polygamy law. The Court’s reasoning, in Reynolds and later in Smith, was that a generally applicable criminal law does not raise any free-exercise issues whatsoever. That is, the Constitution’s free-exercise clause protects religious beliefs but not necessarily religiously motivated actions that run afoul of neutrally enforced federal laws, even if such laws indirectly impeded the exercise of religion.”
In other words, you can’t claim a religious freedom from one law in order to break an already established law. For example, if your religion calls for human sacrifices you can’t claim that freedom because murder is already an established violation of law that does not target any particular religion.
But the Smith decision provoked outrage in Congress and therefore RFRA was passed to re-establish a basis for preserving religious freedom “unless there was a compelling state interest”. RFRA says that the burden of proof is on the government to show that the “compelling state interest” is served by a law that imposes a significant burden on an individual’s religious conduct.
This Supreme Court decision applies to closely-held corporations, essentially family owned businesses, and does not necessarily apply to publically held corporations with numerous stockholders. The Court considers these closely-held corporations as “individuals” and rejects the liberal notion that corporations like these cannot claim religious purposes for their businesses. Justice Samuel Alito, writing for the majority opinion said, “Protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.”
Liberals are already calling this verdict “gender bigotry” as they continue to promote the mythical “war on women”. They insist on mischaracterization of the Hobby Lobby case and its meaning. John McCormack, writing in The Weekly Standard called attention to this hysteria. He writes Salon claimed the Court sanctioned “bosses’ denying women all contraception coverage.” NARAL board member Jessica Valenti declared that the case is “really about a fear of women’s sexuality”. Steve Coll suggests in The New Yorker that the Supreme Court might grant religious exemptions to the Taliban if it organized as a closely-held American corporation.
Even likely presidential candidate Hillary Clinton added to the rhetorical distortions of the Court’s decision. McCormack writes, “At the Aspen Ideas Festival, Clinton warned that the Court had “introduced this element” into American society usually found in “very unstable, antidemocratic” countries where men control women’s bodies. She lamented that a “sales clerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health care.” And, she asked, “Does the decision mean if you’re in need of a blood transfusion your insurance policy doesn’t have to cover it? This is a really bad slippery slope.”
So many distortions, where to begin? First of all, Hobby Lobby provides 16 of 20 FDA-approved contraceptives for all of their employees. They only objected to those 4 contraceptives that destroy a fertilized egg and are therefore considered abortifacients – drugs or devices that induce abortion. This is not a religious belief, it is a fact well established in science. Furthermore, the ruling does not prohibit any of their employees from obtaining these abortifacients; it simply exempts the owners from paying for them.
Jonah Goldberg writes in National Review Online that abortion-rights protestors gathered outside the Supreme Court building on the day the Court handed down the decisions for Hobby Lobby holding signs that read “Birth Control: Not My Boss’s Business”. But that’s precisely the point; it is not their bosses’ business and the Supreme Court agreed. If you want to take birth control, or even end the conception of a fertilized egg with an abortifacient; that’s your business. But don’t expect your employer who has religious convictions to the contrary to pay for the choices you make. As Goldberg says, “The notion that denying a subsidy for a product is equivalent to banning that product is one of the odder tenets of contemporary liberalism.”
As for the expense, contrary to Clinton’s statement, the cost of these is approximately $9 per month. McCormack gives perspective on this nominal expense when he says, “The federal government, which intends to spend $2 Trillion on ObamaCare over the next decade, could scrounge up the change to pay directly for contraceptives or abortifacients not covered by conscientious objectors’ health plans.”
What about those blood transfusions Clinton is worried about, or even vaccinations? Justice Alito’s majority opinion goes on to say the government could point to “no evidence that insurance plans in existence prior to the enactment of ACA excluded coverage for such items. Nor has HHS provided evidence that any significant number of employers sought exemption, on religious grounds, from any of ACA’s coverage requirements other than the contraceptive mandate.”
The Real Issue
The extreme reactions on the left reveal the true nature of this controversy. It is less about contraceptives and more about abortion. The requirements of the ACA regulations to provide these contraceptives and abortifacients were never passed by Congress. The Obama administration was never able to get the ACA to pay for abortions because several pro-life Democrats refused to vote for that. But the White House tried to get the camel’s nose under the tent with the addition of this contraception mandate, which included abortifacients, after the law was passed.
These requirements were added under the discretion granted to HHS Secretary Kathleen Sebelius to determine the “essential health benefits” the law would require. This particular mandate was developed in conjunction with Planned Parenthood, the largest provider of abortion services in the country. Perhaps this further explains the recent listing of a “dirty 100” organizations by The National Organization of Women (NOW) simply because these companies have filed lawsuits to exempt them from providing these offensive abortifacients. Included in this listing of “dirty” organizations is The Little Sisters of the Poor, nuns who provide desperately needed medical care and comfort to the elderly and disabled. Apparently, NOW doesn’t represent these women.
Impact on Non-profit Cases
This is a tremendous victory for the For-profit companies seeking exemption from the onerous provisions of the ACA. But what about the impact this Court’s decision will have on the Non-profit cases pending before the courts? These include The Little Sisters of the Poor, Wheaton College, and Tyndale publishers, just to name a few of the one hundred. Will the Hobby Lobby decision benefit their cases?
The government is actually referencing the Hobby Lobby decision in their arguments involving the Wheaton College case. Jess Bravin, writing in The Wall Street Journal, says U.S. Solicitor General Donald Verrilli cited the Hobby Lobby ruling to buttress the claim it has offered religious non-profits an acceptable compromise to opt out of contraceptive coverage in employee health plans. He is referencing the so-called “accommodation” that was offered by the White House after they received an avalanche of complaints, especially from the Catholic Church, when the requirements of the Contraception Mandate were first released.
But this “accommodation” has been rejected, as it should be, by numerous Christian organizations, as ineffective in relieving the moral objections the law creates. Wheaton responded, “Wheaton believes that authorizing its (insurance administrator) to provide these drugs in Wheaton’s place makes it complicit in grave moral evil. Wheaton can neither provide the mandated coverage nor execute and deliver forms that prompt others to do so.”
Perhaps the most important reaction to the Hobby Lobby decision came in a ruling in the Eleventh Circuit Court of Appeals just the day after the Supreme Court decision was handed down. The court was considering the case of Eternal Word Television Network, which runs Catholic-themed programming. Eternal Word Television Network v. Secretary of HHS was heard by two left-leaning judges, Beverly Martin and Adalberto Jordan, both appointed by President Bill Clinton, as well as Judge William H. Pryor. The court decided unanimously to grant EWTN its injunctive relief from the burden of the ACA mandate.
Quin Hillyer, writing in National Review Online, gives his assessment of the verdict:
“It does not take much to read between the lines in the injunction that a unanimous three-judge panel of the Eleventh Circuit granted Monday afternoon in favor of Eternal Word Television Network. . . . The order begins as follows: “In light of the Supreme Court’s decision today in the Hobby Lobby case (emphasis added), we grant the motion of Eternal Word Television Network.” Hillyer believes this shows only a grudging acceptance of Monday’s undeniable signal from the Supreme Court.
As encouraging as the reaction of these two liberal judges in the EWTN case is, the opinion written by the third judge, William H. Pryor, is even more important. Judge Pryor’s 27-page explanation of the verdict covers every possible future argument that might be brought against EWTN in any future court. This is critical for the sake not only of EWTN, but for all non-profit religious organizations that seek exemption from the ACA mandate.
Hillyer believes there are three reasons these lawsuits will be favored in future court decisions.
- One – The five Supreme Court justices that favored Hobby Lobby will almost certainly favor any future non-profit case deliberations brought to that court.
- Two – It is more likely at least two of the four liberal justices of the Supreme Court will join the majority opinion. Actually, all four liberals already joined a unanimous opinion in favor of a church-affiliated school in the Hosanna-Tabor case even when the opponent was claiming employment discrimination – a much stronger legal claim than the supposed right to have somebody else subsidize one’s contraceptives. Furthermore, two of the four justices refused to join a key part of Justice Ruth Bader Ginsburg’s dissent in Hobby Lobby.
- Three – Judge Pryor’s opinion in support of the injunction in EWTN is such a tour de force that it provides a perfect template for an eventual Supreme Court decision in favor of the Catholic TV network, leaving no reasonable loopholes to worry the legal conscience of any doubting Anthonys on the high court.
Pryor referenced Hobby Lobby saying, “it is not for us to say that (the network’s) religious beliefs are mistaken or insubstantial. . . . Courts must instead determine whether the line drawn (by the network) reflects an honest conviction, and there is no dispute that it does.” Pryor added that the honest conviction of EWTN is that even the so-called “accommodation” offered by HHS will require EWTN’s complicity in a scheme that is “condemned by the principle of material cooperation in evil.”
Pryor also referenced Pope John Paul II who was approached by the churches in Germany when they were asked to sign “certificates” attesting that women seeking an abortion had first secured “counseling” from the church. In effect, the certificate was used as a prerequisite for an abortion – which is very closely analogous to the “Form 700” that HHS wants EWTN to provide to the insurance provider “in order” for the insurer to provide the abortifacient coverage to which EWTN objects. The Pope ordered the German churches not to comply.
It is clear that Pryor regards the “accommodation” as an ineffective remedy. He writes: “It is undeniable that the United States has compelled the network to participate in the mandate scheme by requiring the network not only to sign but also to deliver the form to its third-party administrator of its health-insurance plan. The network must sign a form that, on its face, states that the network’s delivery of it is required “in order for the plan to be accommodated with respect to the contraceptive coverage requirement.” If the network, or Wheaton College, or The Little Sisters of the Poor, believes that this activity would make them complicit in grave moral sin, who are the courts to adjudicate their own religious convictions?
There is great cause for celebration of the Hobby Lobby victory by all Americans who value their religious freedom. But there is also great concern for the future as long as secular progressives like President Obama and his supporters believe the government should control our lives rather than our consciences.