By Grace-Marie Turner
The Supreme Court today rang a victory bell for religious freedom as it ruled 5-4 that “HHS’s contraceptive mandate substantially burdens the exercise of religion” of three closely held companies – Hobby Lobby, Conestoga Wood Specialties, and Mardel.
The companies objected to the Obama administration’s mandate that they must provide, at no cost to their employees, coverage for products that can terminate life in the womb, violating their religious beliefs.
Supreme Court Justice Samuel Alito, writing for the majority, noted that the companies have “sincere Christian beliefs that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs or devices that operate after that point.” The administration had argued that the plaintiffs were for-profit corporations and therefore couldn’t have religious beliefs.
“Protecting the free-exercise rights of closely held corporations…protects the religious liberty of the humans who own and control them,” the court found in citing the Religious Freedom Restoration Act of 1993.
People would be second class citizens if, as owners of corporations, they were not allowed to exercise their religious freedom, Justice Alito said this morning from the bench in announcing the decision. The court’s decision means that Americans have religious freedom in all aspects of their lives: If you go into business and start a corporation, you do not lose your rights.
The government’s loss ignites a fresh challenge to the Obama administration’s often illegal implementation of the health overhaul law. As the court pointed out, the mandate was not included in the statute but was imposed by the administration through its regulations to implement the law.
Today’s decision gives Congress a stronger basis for legislation to rein in the administration’s liberal interpretation of its powers under the statute, a power it will very likely push if the U.S. Senate changes hands in the November elections.
But it also sets up a new fight. White House press secretary Josh Earnest said after the ruling, inaccurately, “there are now a group of women of an indeterminate size who no longer have access to free contraceptive coverage simply because of some religious views held, not by them necessarily, but by their bosses.” First, the ruling applies to four products that Hobby Lobby said induce abortion, not to all contraceptives. Second, women have many other options for “free” contraceptives, including health clinics. Third, generic versions of the drug are available for about $5 a month, hardly a substantial cost.
However, the court concludes that the mandate “substantially burdens the exercise of religion” for companies.
“It requires the Hahns and Greens [the families who own the companies] to engage in conduct that seriously violates their sincere religious belief that life begins at conception.” The court explained that the financial consequences are considerable. “If they and their companies refuse to provide contraceptive coverage, they face severe economic consequences: about $475 million per year for Hobby Lobby, $33 million per year for Conestoga, and $15 million per year for Mardel.
“And if they drop coverage altogether, they could face penalties of roughly $26 million for Hobby Lobby, $1.8 million for Conestoga, and $800,000 for Mardel.”
The court was not persuaded by the government’s claim that the companies could simply drop coverage: “Amici supporting HHS argue that the $2,000 per-employee penalty is less than the average cost of providing insurance, and therefore that dropping insurance coverage eliminates any substantial burden imposed by the mandate.” But the court said, “It ignores the fact that the plaintiffs have religious reasons for providing health-insurance coverage for their employees, and it is far from clear that the net cost to the companies of providing insurance is more than the cost of dropping their insurance plans and paying the ACA penalty.”
The court determined the mandate places a “substantial burden on the objecting parties’ ability to conduct business in accordance with their religious beliefs.”
Challenge to religious liberty
In interpreting the Affordable Care Act, the Department of Health and Human Services mandated that employee health care coverage must include contraception, sterilization procedures, and drugs that can cause abortions. The Supreme Court heard arguments on March 23 on the case, known as Hobby Lobby.
More than 2,500 religious leaders from many denominations sent letters to President Obama objecting to the mandate, asking the administration “to protect the conscience rights of all people who have moral or religious objections to covering contraceptives and sterilization procedures.”
The Obama administration argued that companies had a means to escape through an “accommodation” it devised – a shell game to shift funding for the mandated provisions to insurance companies. But ultimately the employer would still pay because the cost would be buried in higher premiums.
The government contended that the religious views of the owners of a private business are not relevant and therefore they do not have a right to get an exemption from the law, as churches do.
Other court challenges
Other suits challenging the mandate, chronicled by the Becket Fund for Religious Liberty, are making their way through the courts. The Archdiocese of Philadelphia and its Catholic Charities affiliates sued the federal government earlier this month seeking relief from the federal mandate. The diocese is the 50th non-profit organization — including 17 individual dioceses and archdioceses — to file suit seeking an injunction on the regulations.
These suits represent non-profit ministries challenging the mandate and are about a year behind the Hobby Lobby cases in working their way through the courts. The Obama administration has refused to exempt them from the mandate, saying the “accommodation” gives them an exit. The Little Sisters of the Poor, leaders in the fight on behalf of non-profit charities, say they would have to fill out a form so their employees could receive the objectionable services from a third party and that this makes them morally complicit in the evil of ending human life. A federal court ruled against the Little Sisters in December, but they received an emergency injunction.
Today’s decision would seem not to give the Obama administration comfort. The Religious Freedom Restoration Act “indisputably protects nonprofit corporations,” Justice Alito wrote today on behalf of the majority. But the legal parsing of the decision indicates there is still some question about its implications for the Little Sisters.
What does this portend?
Today’s decision strikes a blow to the administration, sending a strong message that it has gone beyond its legal authority in interpreting the law. That would make it even more difficult for the administration to continue to make its extra-legal changes in the future.
But the decision also reignites the “war on women,” and liberals are sure to wage a major campaign against the ruling, the court, and Hobby Lobby. They already are talking about legislation that would create a new government program to fund contraceptives at no charge to women whose employers don’t provide them.
The SCOTUS ruling comes as the Catholic Church is in the midst of its annual Fortnight for Freedom, culminating with the July 4 Independence Day celebrations. This is indeed a celebration for religious liberty but by no means the end of the fight.
Posted on Forbes, June 12, 2014
An earlier version of this piece was posted at National Review Online’s The Corner.