The recent Hobby Lobby decision by the U.S. Supreme Court was celebrated by many as a major victory for religious liberty, yet the decision did not sound the death
knell for the federal government's contraceptive and abortion drug mandate. While the High Court held that certain businesses did not have to include coverage of abortifacients in their health plans, the judges did not invalidate the mandate itself.
The contraceptive and abortion drug mandate is a byproduct of the Affordable Care Act, most commonly referred to as Obamacare. The ACA authorized the Secretary of Health and Human Services (HHS) to establish the terms of a basic benefits package that must be included in all health insurance plans issued in the United States.
Under that authority, former HHS Secretary Kathleen Sebelius established an edict that "preventative care"
include coverage of all contraceptive drugs and devices approved by the Food and Drug Administration without co-pays or co-insurance. The scope of the edict thus included mandated free coverage of abortifacient drugs like Ella and Plan B, and intrauterine devices that have the same effect. A narrow exemption from the mandate was provided to religious denominations and their integrated auxiliaries.
In a 5-4 decision known as Burwell v. Hobby Lobby,
the Supreme Court ruled that the owners of the Hobby Lobby craft store chain and the Pennsylvania cabinet maker Conestoga Woods did not have to comply with the mandate. As expected, the court majority
concluded that closely held corporations could claim exemption from the mandate if it violated the religious convictions of a business owned and controlled by a single family. In the opinion written by Justice Samuel Alito, the court ruled that the mandate was a violation of the Religious Freedom Restoration Act in such circumstances.
In a groundbreaking decision, the Supreme Court stated that certain corporations are "persons" entitled to the free exercise of religion, and that "protecting the free exercise rights of corporations like Hobby Lobby and Conestoga protects the religious liberty of the humans
who own and control those companies."
Justice Alito wrote that "the 'exercise of religion' involves not only belief and profession but the performance (or abstention from) physical acts that are engaged in for religious reasons. Business practices that are compelled or limited by the tenets of a religious doctrine fall comfortably within that definition."
Alito further stated that "a law that operates so as to make the practice of religious beliefs more expensive in the context of business activities imposes a burden on
the free exercise of religion." Businesses that failed to comply with the contraceptive mandate faced fines of $100 per day per employee. This would have cost the Greens, the owners of Hobby Lobby $1.3 million per day or $475 million a year. Had the Greens decided to abandon health insurance coverage altogether to avoid the religious conflict, they would have been fined $2000 per year per employee.
Under previous religious free exercise precedents, the U.S. Supreme Court has ruled that government cannot impose a "substantial burden" on the exercise of religion unless it furthers a "compelling government interest" and is the "least restrictive means" of doing so. The court majority concluded that the contraceptive mandate did amount to a "substantial burden" on family businesses
with religious convictions about the sanctity of human life.
The High Court accepted the federal government's assertion that providing "cost-free access" to contraception is a "compelling government interest." However, it ruled that the contraceptive and abortion drug mandate was not "the least restrictive means" of doing so. Here is where the High Court's decision proves to be of disappointment to the pro-life community.
The court majority suggested that the contraceptive and abortion drug mandate could be implemented in a constitutional fashion by having the government assume the cost of providing abortifacient drugs and devices to
all American women, and that religious objectors would have no basis to challenge such an expenditure of government funds. As an alternative, the court suggested it would be constitutional for the government to offer objecting private businesses the same "accommodation" it has offered to non-profit organizations with religious objections to the mandate.
Under this phony scheme concocted by HHS, insurance companies or third-party administrators are required to provide "free" contraceptives and abortifacients to employees of such organizations under a separate arrangement. The result is that drugs and devices that destroy human embryos are still supplied to employees as a result of the employer's group health plan. The notion that insurers are not going to pass these costs on to the employer is pure folly. The Obama
Administration has already signaled that it will now implement this scheme for businesses like Hobby Lobby.
The Supreme Court added further confusion to the applicability of the mandate to religious non-profit organizations a few days later when it ruled that Wheaton College did not have to cooperate in the third-party "accommodation" scheme by filling out a form expressing its religious objections to the mandate. Officials at Wheaton contended that doing so would trigger the provision of life-destroying drugs to their employees in violation of their religious doctrines.
In response to the Supreme Court decision, Senate Majority Leader Harry Reid unsuccessfully attempted to
pass legislation to "overturn" the Hobby Lobby decision. Missouri Senator Claire McCaskill voted to force the contraceptive mandate upon religious employers, while Senator Roy Blunt voted to retain religious freedom protections.
Blunt, a strong opponent of the mandate, cheered the High Court decision. "People of faith shouldn't have to give up their business to keep their faith. You have every right to seek the kind of health care you want, but you don't have the right to make your employer pay for it if your employer has religious objections to it."
Left unspoken in the public furor over the Hobby Lobby decision is the most objectionable portion of the Affordable Care Act. For the first time in history
American taxpayers are required to pay for the cost of abortions for individuals who qualify for government subsidies for the cost of health insurance. The only feasible way to end this abomination is through the complete repeal of Obamacare, which neither political party seems willing to embrace.
We applaud the Green family and the Hahn family, the owners of Conestoga Woods, for taking a courageous stand on behalf of human life and religious liberty. As David Green said following the Supreme Court decision: "This legal challenge has always remained about one
thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution. Business owners should not have to choose between violating their faith and violating the law."
*Sylvia Burwell replaced Kathleen Sebelius as Secretary of Health and Human Services upon Sebelius' retirement.