Category archives: Health Care

Court Delivers another Blow to Obamacare

by Emily Minick

July 22, 2014

Earlier this month the Supreme Court ruled that the Obama Administration could not force family businesses, like Hobby Lobby and Conestoga Wood Specialties, to violate their conscience in order to earn a living.

Another blow to Obamacare was delivered by the DC Circuit Court of Appeals today in a 2-1 decision, Halbig v. Burwell, affirming that the Administration has to follow their own law, as written and can’t either make it up or change it as they go along. The court ruled that federal subsidies to assist individuals in purchasing insurance are only available to those who purchase healthcare through an exchange created by their state, not a federally created exchange in a state. The Affordable Care Act text is extremely clear, only individuals who live in states that have set up their own healthcare exchange are eligible to receive income subsidies to assist in lowering the cost of purchasing healthcare.

The problem is many states did not set up their own exchange for a variety of reasons, including the cost of developing and running an exchange, and in some cases because they disagreed with the principle of Obamacare in general. Even some states that did originally decide to set up a state exchange, like Oregon, later dissolved it due to high cost and joined the federal healthcare.gov exchange. This year, 36 states decided to forgo developing and creating their own state exchange and instead opted to have the government create an exchange to operate in their state. Recent news reports also say that Massachusetts, if their exchange is not working properly in time for upcoming 2015 enrollment this fall, will plan on joining the federal exchange in their state.

The Affordable Care Act (ACA) allows for this possibility and says the federal government will create an exchange in the state if the state doesn’t. The issue is the ACA doesn’t say that money can go to the federally created exchange in those states. The Administration funded subsidies in these states anyway and thus the lawsuit with the option delivered today. Individuals in these 36 states who needed to purchase healthcare, if not provided by their employer, looked to the federally created exchanges to satisfy the individual mandate requirement. A recent study by HHS found that 87 percent of individuals who purchased healthcare on the federally created exchange were eligible to receive an income subsidy.

Now, this ruling could derail the entire Obamacare train.

  1. Plans on the healthcare exchanges were not as cheap as individuals originally thought they would be. Between high deductibles, high monthly premium costs, and lack of participating providers in certain designated areas, people did receive a sticker shock when they shopped on the marketplace last year. Now, if this ruling stands, individuals will not have the luxury of having the high cost of premiums masked by income subsidies if their state did not set up their own exchange.
  2. Assuming that no other states back out of operating their own exchange this upcoming plan year, individuals in 36 states will have to cover the entire cost of healthcare premiums on their own. This could result in thousands of individuals opting to pay the tax penalty rather than pay for the high cost of many of these exchange plans. If less people purchase healthcare, especially young people, there will be less healthy people in the pool, which could raise rates even more because healthcare insurance companies will have to compensate for the cost of covering pre-existing conditions.
  3. If there is one thing that Americans should realize about Obamacare by now, it’s that the executive branch does not have the power to write the law, enforce the law and interpret the law however it sees fit. The executive is in charge of faithfully executing the law. To date there have been 42 changes to Obamacare. Today’s ruling affirms that the President cannot change a law just because it is unpopular.

What does this ruling mean for average Americans? The ruling in Halbig v. Burwell affirms that the President cannot pick and choose what parts of the law he wants to follow. This ruling also illustrates to the American people that Obamacare really is as bad as Republicans said it would be. The Administration cannot mask high premiums, failed state exchanges, broken websites, and unenforced provisions with income subsides to those prohibited from receiving them according to the text of the Affordable Care Act.

Democratic Bill to Override Hobby Lobby Ruling Fails

by Arina Grossu

July 16, 2014

A bill introduced by Sen. Patty Murray (D-WA) and Sen. Mark Udall (D-CO), the “Protect Women’s Health From Corporate Interference Act” to override the U.S. Supreme Court’s recent Hobby Lobby ruling failed to get cloture in the Senate today. The Supreme Court ruled in Hobby Lobby v. Burwell that family business owners do not have to violate their consciences in order to earn a living by providing drugs and services to their employees in their healthcare plan, to which they morally object.

This bill seeks to overturn what the Supreme Court ruled earlier this month, and would force family business owners to provide their employees in their healthcare plan drugs and devices that have the potential to kill an unborn child even if they may have moral objections, and despite the protections afforded to them by the Religious Freedom Restoration Act (RFRA). It failed to get the sixty votes that were needed to move the bill forward, coming up short at 56-43 votes. We are thankful to the Senators who voted against cloture on this bill, thus protecting the religious freedom of all family businesses.

Discriminatory Murray Bill is anti-constitutional and anti-civil rights, anti-business, anti-religion, and anti-women

by Travis Weber

July 10, 2014

I’m not sure whether the title of the bill just introduced by Senator Murray—the “Protect Women’s Health From Corporate Interference Act of 2014”—or its stated purpose—“[t]o ensure that employers cannot interfere in their employees’ birth control and other health care decisions”—is more misleading and contrary to values Americans hold dear. Perhaps they are equally wrong. But not only is this bill misleading, it is anti-constitutional and civil rights, anti-religion, anti-business, and anti-women. In all these areas, the bill is just downright discriminatory.

Anti-constitutional and anti-civil rights

When Congress overwhelmingly passed RFRA in 1993, it demonstrated support for robust Free Exercise rights by requiring the government to meet a high threshold before burdening Americans’ exercise of religion—a civil and constitutional right. RFRA is not just a statute. RFRA enshrined in law the high standard of strict scrutiny when measuring free exercise claims. For decades, courts had applied this standard. Only recently had its application been questioned by the Court’s Smith decision. Thus Congress passed a law providing a high bar for measuring constitutional rights in this area.

Senator Murray doesn’t seem to care about any of this. If she did, she wouldn’t try to denigrate constitutional rights by trying to pass a law which lowers constitutional protections for all Americans. Instead of using her Article I powers consistent with what Article III courts have said, she ignores the Supreme Court’s guidance and flouts the checks and balances the Constitution put in place.

But even if this anti-constitutional law managed to get out of Congress, President Obama would be foolish in signing it instead of just authorizing the drugs as suggested by the Court.

And even if this law passed, it would be subject to a challenge under the Free Exercise Clause. This bill’s overt and direct discrimination against religion—which is very obvious coming right on the heels of Hobby Lobbyobb

would not be permissible under the First Amendment. Page 8 of her bill says, “[t]his Act is intended to be consistent with the Congressional intent in enacting the Religious Freedom and Restoration Act of 1993 … .” In RFRA, Congress evinced the intent to proclaim a broad and robust vision of free exercise, and clearly intended to reinstate strict scrutiny as the standard for Free Exercise claims. Senator Murray can’t have it both ways. She can’t proclaim support for the congressional intent of RFRA while gutting a protection RFRA clearly put in place.

Anti-business

In its Hobby Lobby decision, the Supreme Court made abundantly clear that businesses could not deny access to contraceptives, but only that the government had to find a less restrictive means of ensuring this access than forcing unwilling businesses into providing it themselves. One less restrictive means would be for the government to directly provide this birth control. But rather than working with the government to ensure this happens, Senator Murray and her cohorts are still trying to ram the HHS mandate down business owners’ throats, despite the fact that this was already rejected by the Court in Hobby Lobby. Senator Murray doesn’t care about access. If she did, she would follow the Supreme Court’s guidance, which would ensure quickest access to birth control. Instead, her measure will fail for numerous reasons, and will only waste time she could spend on providing birth control to women—an issue she claims to care about.

Anti-religion

Senator Murray goes out of her way to target religion in her bill. If she cared about access to contraceptives, she would work with the executive branch (which the Court explained could provide access) to provide these drugs. Instead, she has explicitly declared her antagonism to religion by opposing RFRA and the Court’s interpretation of RFRA for no reason related to “access” whatsoever—as access to these birth control methods can be provided other ways besides the HHS mandate. Instead, she wants to amend the law to achieve a result which has already been determined in violation of religious liberty by the Supreme Court. On page 6 of her bill, she claims that not covering contraceptives costs businesses more money. Why would she want to prevent businesses from incurring costs in order to remain true to their consciences? The only explanation is that she wants to force them to violate their consciences.

Anti-women

Plenty of women oppose the HHS mandate being used to stifle their religious exercise, and plenty of women judges agree that their claims have merit. 100 cases have already been filed against the HHS mandate. Many of the plaintiffs in these cases are women—women who run charities, like the Little Sisters of the Poor, but also women who run businesses. Nearly one-third of the business plaintiffs in these cases are women. In addition, women judges have voted to halt implementation of the mandate 24 times. In only 15 cases have they voted in favor of the employer mandate. Finally, more women oppose the mandate than support it in poll after poll across the United States.

How can Senator Murray and this bill’s supporters claim to be supporting women when they are directly opposing the sincere religious claims of so many American women?

A Defense of Religious Liberty on the Senate Floor

by Emily Minick

July 10, 2014

This week, Senator Coats went to the Senate floor to speak on the issue of religious liberty and the HHS mandate. The HHS mandate requires all private and employer based healthcare plans to cover contraceptives, drugs which can destroy a human embryo and sterilization services, without copay, under threat of crippling fines.

You can watch Senator Coats’ defense of Wheaton College, who just received an emergency injunction from the Supreme Court against the HHS mandate, here. Wheaton College is a non-profit challenging the Obama administration’s HHS mandate “accommodation”, which is nothing more than an accounting gimmick.

Why Planned Parenthood’s Abortion Quotas are Anti-Women

by Haley Halverson

July 3, 2014

Most of us don’t expect to hear a sales pitch when we go to a healthcare appointment.

However, that’s what women get when they go to Planned Parenthood.

A new development in Planned Parenthood’s continued desire to coax women into choosing abortion has surfaced, according to reports from Breitbart.com and CNS news.

A Planned Parenthood clinic in Aurora Colorado has recently received an award for “exceeding abortion visits [in the] first half of FY12 compared to the first half of FY13,” from the Planned Parenthood of the Rocky Mountains,

Why should women care that Planned Parenthood is giving its satellite clinics a pat on the back?

Because this clinic’s certificate for being an abortion “over achiever” confirms that Planned Parenthood has minimum quotas for abortions.

Abortion quotas put clinics in the business of promoting these life-ending procedures instead of serving women according to their needs. The abortion award in Colorado only further verifies testimonies about Planned Parenthood’s agenda from previous employees, such as Marianne Anderson. Marianne Anderson, who worked at a Planned Parenthood in Indianapolis for two and a half years, told The Criterion:

You have to have so many [abortions] a month to stay open. In our meetings they’d tell us, ‘If abortions are down, you could get sent home early and not get as many hours.’”

Planned Parenthood being in the business of peddling abortions above other options is nothing new. A pamphlet by Family Research Council states:

According to estimates, a first trimester non-subsidized abortion costs approximately $550. As reported in their 2010 annual report, Planned Parenthood performed 329,445 abortions, yielding approximately $181,000,000 in revenue—solely from abortions performed that year. In contrast, Planned Parenthood made 841 adoption referrals in 2010.

Last year Planned Parenthood performed 327,166 abortions and raked in revenue of $1.21 billion dollars last, 45% of which was funded by tax payers, according to their annual report.

Planned Parenthood, like any other business, wants to make as much money as possible. But it is disingenuous—if not immoral—for this organization to claim it has women’s health as its top priority while also setting incentives for employees to push one (lucrative) option on women.

When vulnerable women enter a clinic they expect to meet a professional who values their health. Not a salesperson, eager to pawn off a product. It is clear, then, that Planned Parenthood cares more about its profit margins than the women it claims to serve.

Slandering the Supremes

by Travis Weber

July 3, 2014

Justice Ruth Bader Ginsburg’s dissenting opinion in the Supreme Court’s recent decision in Burwell v. Hobby Lobby is, in my view, clearly erroneous. With my colleagues at Family Research Council, I applaud the majority opinion as fully consistent with the requirements of religious liberty and the needs of women.

So, how does one get away with treating Supreme Court justices in a manner which would get any child reprimanded in elementary school? You couch your insult with humor, and engage on a politically correct topic.

The biggest question surrounding the recent song by Song A Day’s Jonathan Mann putting Justice Ginsburg’s dissent in the Hobby Lobby case to music — and in which he refers to the justices in the majority as “slut-shaming geezers” — is why no one is bothered enough by such slandering and disrespecting of Supreme Court justices to say anything. But it is what it is: Shameful.

What’s the point of these antics? Who knows … . Perhaps it’s because the writer doesn’t care to read what the decision says. Perhaps he thinks it’s more fun to mock its authors. Perhaps he does understand the decision and realizes he can’t attack the reasoning so, in a cowardly move, he attacks the authors’ integrity. Perhaps he does understand the decision but realizes he won’t acquire fame with a reasoned response so he adds incendiary words to his song. Or, perhaps, he knows he will only get people to listen to him if he adds shock value — thus he mocks justices and a decision which actually has inherent meaning he’s not bothering to understand.

There is nothing wrong with putting Justice Ginsburg’s dissent to music. The interaction of the Court with the public, although generally that of a more formal nature, can bear the casual manifestation of a song. In fact, some have shown the ability to tastefully depict the clash of ideas at work in Supreme Court rulings in formats including even opera. But what is harmful to the Court is a cultural attitude that dismisses the Court’s work by mere insults — without any basis in truth or basic comprehension of the legal principles at issue. Jonathan Mann makes his living as an entertainer, an entertainer who touts his ability to take “large amounts of complicated ideas and very quickly [transform] them into a hilarious, hummable and memorable song.” Here, he’s not bothered to even acknowledge the “complicated ideas” under question — he’s simply resorted to name calling. The Court and our country can bear lighthearted whimsy. What they can’t bear are baseless insults like this — insults, moreover, which aren’t even true.

Need we call to mind that the only thing the families behind Hobby Lobby and Conestoga ever objected to was 4 out of 20 methods of birth control they were being forced to provide, on the belief these 4 killed little babies in the womb? Yet according to Jonathan Mann, many “sluts” have been “shamed” when the justices ruled that women still must receive these 4 types of birth control. Wait, what? Yes, the justices ruled women still are to receive all their contraceptives — the government just has to provide them in a way that does not force employers with religious objections to violate their consciences by playing a part in what they view to be evil. Yes, of course, it is very obvious to see that many “sluts” were “shamed” with this ruling … .

Maybe one day if a justice (it would have to be one of the older male justices) was caught outside of the court rebuking a young woman for sleeping around too much — maybe then, he could accurately be called a “slut shaming geezer.” Even then, I’m not sure such antics would be called for. But they are hardly called for when any reading of the opinion does not justify such antagonism.

There are plenty of high court opinions I disagree with, but none over which I would attack the justices’ character. I can’t remember the last time someone mocked a liberal Supreme Court justice in this way. Yet if they did, it would be equally uncalled-for.

In the end, the name-calling (inaccurate at that) is symptomatic of a larger issue — the inability of many Americans to accurately engage on public issues and play a role in our experiment in democracy. As public engagement and living side by side in toleration of different views gives way to name-calling aimed at conformity to what is politically correct, the gears of our nation will grind to a halt. And we will all suffer for it.

Attacks and slander like that of Jonathan Mann may or may not be legal. But it is certainly shameful. People of integrity on all sides of these issues need to call this out when they see it.

We would call upon all, including those opposed to the Court’s ruling in Hobby Lobby, to denounce such baseless attacks. It would be appropriate for Justice Ginsburg to make clear she does not support such sentiments. All Americans, though they reasonably disagree on issues such as the Court faced here, should be united in opposition to Jonathan Mann’s slanderous words.

Hobby Lobby: A clear win for RFRA, and a cautious rebuke of the HHS mandate

by Travis Weber

July 1, 2014

In Burwell v. Hobby Lobby Stores, the Supreme Court held in a 5-4 decision that closely held for-profit corporations can bring claims under the Religious Freedom Restoration Act (“RFRA”), and that the HHS mandate violated these corporations’ rights under RFRA by requiring them to provide contraceptives which they believe end human life. The Court faced two issues: (1) whether for-profit corporations are “persons” for purposes of RFRA protection, and if so, (2) whether the HHS mandate violated RFRA in this case. It decided the first clearly, and the second more cautiously.

RFRA protects corporations

Holding

RFRA protects a “person’s” religious exercise. The question is whether Hobby Lobby and Conestoga are “persons.” The Court held that they are—specifically that closely held for-profit corporations like those in this case clearly fall within the meaning of “person” in RFRA.

Analysis

The Court began by noting the broad protections Congress set in place by passing RFRA, which would indicate that closely held businesses are covered. In addition, the Dictionary Act indicates that for profit corporations are covered by RFRA, and there is no context surrounding RFRA to indicate otherwise (the Court rejected the government’s argument that RFRA merely codified pre-Smith case-law). The government had conceded that a nonprofit corporation can be a person for purposes of RFRA. Thus, there is no logical reason to conclude that for profit corporations are not protected by RFRA simply because they make a profit. As the majority opinion notes: “HHS would put these merchants to a difficult choice: either give up the right to seek judicial protection of their religious liberty or forgo the benefits, available to their competitors, of operating as corporations.” Majority op., at 17. Of course, the government has to recognize that individuals (sole proprietors) can exercise religion even though they make a profit. The government thus argued that these two elements—profit making and corporate form—added together are reason to deny Hobby Lobby and Conestoga RFRA protection. Yet the government ultimately had no sufficient basis for its argument, and the Court squarely rejected the government’s position and held that Hobby Lobby and Conestoga can bring claims under RFRA.

*NOTEResult is limited to closely held corporations: The Court expressly noted its ruling applied to closely-held for profit corporations like those in these cases. The Court did not decide clearly one way or the other whether publicly traded companies and other corporate forms are protected. Those determinations would have to be made in other cases. While this may be viewed as a “narrow” win, the Court regularly does not decide issues which are not before it, and the issue of a publicly traded company’s coverage under RFRA was not before it. Therefore, the Court was simply conducting its analysis as is typical in these cases, and the fact that it so clearly held that the businesses in this case are covered is a strong holding notwithstanding the Court’s statements limiting the holding to closely held companies. The issue of whether companies like Hobby Lobby are covered by RFRA was previously subject to dispute, but now it is settled. This significantly broadens RFRA’s reach.

RFRA claims in this case succeed

Holding

RFRA provides that the government may only substantially burden a person’s exercise of religion when the government’s action or regulation (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. The challengers had claimed that the HHS mandate violates RFRA by burdening their beliefs by requiring them to provide drugs they believe end life, all while not serving a compelling government interest and not being the least restrictive means. The government must make a showing on these elements, or the RFRA claim succeeds. The Court skipped the first question, and easily decided the second against the government because of the existence of less restrictive means. This grants the plaintiffs a win on their RFRA claims, but the Court arrived at its conclusion easily. If the legal trail had been more difficult to blaze, Hobby Lobby would not have been as assured of a win.

Analysis – religious beliefs, their sincerity, and whether they were burdened

Normally a court would determine if the religious beliefs at issue are sincere beliefs (courts never get into whether the exercise is actually in accord with the religion – that would meddle in the internal workings of religion), but the government did not dispute the plaintiffs’ sincerity in this case. Thus the first question for the court is whether there is a substantial burden to the plaintiffs’ exercise of religion. The Court looked at the fines which would be imposed and concluded the HHS mandate imposed a substantial burden, while dismissing the idea that there is no burden because the penalty is conceivably less than providing coverage for employees. The Court also rejected the government’s argument that the religious burden and HHS mandate were too attenuated, noting that the government is not to be in the business of assessing the religious belief, but only determining if it is sincerely held.

Analysis – compelling interest

The Court then assumed that the government may have a compelling interest in providing all the methods of birth control at issue—the Court simply didn’t decide whether there was a compelling government interest in this case. But the Court didn’t ultimately have to decide this issue, because it held that the government did not advance its regulation through the least restrictive means.

Analysis – least restrictive means

The Court continued by stating that even assuming the government has a compelling interest in advancing its HHS mandate, the government has not accomplished this goal through the least restrictive means. The Court rejected the argument that the ACA was akin to a scheme like social security in which it was very important for everyone to participate—the government did not have to compel employers to provide the drugs in order to advance its interests. Here, for instance, the government could directly provide the drugs in order to accomplish its goal through a less restrictive means. The Court also looked at the “accommodation” which has already been provided to other non-profits, and offered that as an example of something the government could have done to provide birth control coverage, while burdening the companies to a lesser degree. Because the government could have done this but did not, the challengers win and the HHS mandate as currently stands violates RFRA.

*NOTEApplication to other scenarios: The Court also said its ruling pertained to contraception and the ACA, and did not necessarily apply to corporate religious objections to other issues like vaccines or taxes. Other considerations on the part of the government, such as controlling the spread of infectious diseases, would affect these determinations in ways different from the considerations pertaining to the HHS mandate. The Court does not give much of an indication on how it would rule on a RFRA claim objecting to a law requiring nondiscrimination on the basis of sexual orientation. It did say religious objections regarding hiring decisions based on race would not succeed, but the race issue is pretty well settled, and such an example does not really help predict how the court would rule on the sexual orientation issue. Many, including the dissent, will decry the majority opinion as sweeping (Justice Kennedy wrote a separate concurrence just to respond to this claim). And yet contrary to this doom and gloom about all manner of religious objections to come, the court recognized RFRA claims would continue to be assessed on a case by case basis as they arise. Majority op., at 46. The “sky is falling” response is not credible in light of the Court’s opinion.

**NOTEEffect on non-profit cases: The Court specifically discussed the “accommodation” as a possible less restrictive means for the government to use, and suggested it would not violate RFRA if used in the instant case—it notes that if the government provided for an “accommodation” similar to that which it provided non-profit entities, the impact on female employees of Hobby Lobby would be zero (thus this satisfies the less restrictive means requirement) Majority op., at 3-4.Justice Alito points out “[t]he principal dissent identifies no reason why this accommodation would fail to protect the asserted needs of women as effectively as the contraceptive mandate, and there is none.” Majority op., at 44. Yet the Court expressly said it was not deciding the “non-profit cases” and would have to decide those separately. In addition, those entities will be treated differently under the law, and involve different legal considerations and claims. It remains an open question whether the “accommodation” violates RFRA in the non-profit challenges, even though it appears such an accommodation would satisfy the Court in Hobby Lobby.

Concurrence

Justice Kennedy concurred in the judgment, and authored a concurrence to respond to the dissent’s characterization of the majority’s holding as very broad and sweeping. (Justice Kennedy appears sensitive enough on that point to want to defend himself).

While the Court skipped over the question of whether a compelling government interest in the HHS mandate exists, Justice Kennedy does seem sensitive about noting he is not deciding that question here: “[i]t is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” What explains this statement? It is possible that Justice Alito (and maybe one or more of the other justices in the majority) would have been willing to find there is no compelling government interest in the HHS mandate, but Justice Kennedy was unwilling to do so. Yet Justice Kennedy was willing to find the least restrictive means requirement unsatisfied in this case, which is enough to find for the plaintiffs. So the majority avoided the compelling interest question, and Justice Kennedy confirms this point. Reading into the opinion slightly more, the “cautious win” for Hobby Lobby on this point could be due to Justice Kennedy.

On a more positive note, Justice Kennedy appears to support a slightly broader view of freedom of religion, noting that religious exercise includes “the right to express those beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.” He obviously agrees that the Greens and Hahns can exercise religion in the face of contrary arguments from the government that non-profits exercise religion while for-profits do not: “RFRA is inconsistent with the insistence of an agency such as HHS on distinguishing between different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation.” Justice Kennedy also cited Justice Kagan’s dissent from the Town of Greece in a statement supporting the diversity of religious exercise in the United States today—while this is good to see, it must be remembered that Justice Kennedy is considering this case easily decided because the existing “accommodation” is a clearly identifiable less restrictive means to advance the HHS mandate. Cases with other issues may not have easily identifiable less restrictive means. In addition, Justice Kennedy will also likely approach cases involving other rights differently.

Dissents

Justice Ginsburg authored the primary dissent, and was joined by Justice Sotomayor in deciding that the companies were not covered by RFRA, and by Justices Sotomayor, Breyer, and Kagan in deciding that the companies’ claims would fail anyway because they are not substantially burdened, the government has a compelling interest, and has satisfied the least restrictive means requirement. Justices Breyer and Kagan wrote a separate but short dissent in which they specifically stated they would not decide whether “for-profit corporations or their owners” may bring RFRA claims, perhaps recognizing the difficulty of the government’s argument on this point. Akin to the way the majority skipped the question of compelling interest and still ruled for the challengers, Justices Breyer and Kagan skipped the question of corporate coverage and held that even if the companies were covered by RFRA, their claims against the HHS mandate would fail. Therefore, notably, there are still seven members of the Court who recognize (through either affirmatively deciding or explicitly refusing to decide the question) the idea that you do not give up religious liberty when you engage in profit making activity.

Take away and future implications

This is a win. However, it is a narrow win. The ruling clearly applies to other closely held for profit entities objecting on RFRA grounds to any drugs required by the HHS mandate. It’s likely to apply to most of the potential fines for noncompliance, though Hobby Lobby’s may be larger than others’ fines. As long as the sincerity of the religious objection is not disputed, and the fines are relatively large, other cases featuring for profit businesses bringing RFRA claims will likely be decided along the same grounds as this opinion.

It is less clear as each of these aspects changes. If the company is another type, the result becomes less clear. If the objection is to a practice in which the government has an easier time showing a compelling interest, like tax collection, the challenge becomes more difficult. The Court offered the example of eradicating racial discrimination as a compelling government interest. We do not know what it will do with sexual orientation discrimination. The dissent did, however, offer Elane Photography as hypothetical future claim which the Court will have to decide. We can assume the four dissenting justices would have a problem with Elane Photography’s claim. Nothing else in the opinion provided a clue about how it would be decided, however.

What is going on with this ruling?

Why do the justices break down in the opinions as they do? This decision is ultimately about suppressing the exercise of religion in favor of a government scheme. This is why the government tried to force for profits to pay in this case. And this is why the accommodation is unsatisfactory for the Administration. Four justices ultimately see the ACA and HHS mandate as so important and such an advance of “rights” that they will subject these businesses to it. Justice Ginsburg uses dismissive language and asks whether RFRA would allow claims “of this ilk” just after mentioning Elane Photography and other cases regarding Christian views on sexuality—which shows an animus on her part toward Christian views associated with traditional values. She also says “[o]ne can only wonder why” the Court ignores (in her view) the reasoning underlying Title VII exemptions (limiting religious activity to nonprofit “religious corporations”) in its understanding of this case. This sharply worded question implies that the majority is deciding these cases according to the justices’ religious beliefs. She and the other liberal justices are likely to be increasingly aware and responsive to this perception. For many years the liberal justices were the ones siding with the free exercise claimant challenging government action. Now the conservative justices are. Admittedly, I think this case would be a closer call for some of the justices if they were deciding individuals’ RFRA claims (as opposed to those of corporations). But we do not have the benefit of that analysis.

Proper framing of this opinion:

Let us not forget that today’s ruling featured a showdown between individual religious liberty rights (constitutional rights, as embodied in RFRA) and an overly intrusive government scheme. Americans’ objections to such schemes, and the ability to seek judicial redress for their objections, lie at the core of American constitutional and civil rights jurisprudence. Americans’ consciences must not be sacrificed on the altar of legislative (or agency) action merely because they also happen to want to make a profit.

Whether corporations engaged in social responsibility initiatives, voluntary community initiatives, or religious practices, corporations have always done much more than just “make a profit.” Whether the case features a Jewish butcher, a Muslim financier, or the Green family’s decision to see their religious beliefs reflected in their business practices, corporations have always served to reflect the beliefs of the human beings behind them. The Court’s ruling today simply recognizes this principle.

In the middle of its opinion, the Court rhetorically asks: “Is there any reason to think that the Congress that enacted such sweeping protection put small-business owners to the choice that HHS sug­gests? Majority op., at 17. No, there is not. America has been built on the backs of small-business owning families like the Greens and the Hahns. Many of them are merely seeking to live free from government intrusion in accord with their beliefs without being forced to violate their consciences. That is not too much to ask. Thankfully the Court agreed.

Burwell v. Hobby Lobby: The Good, the Bad, and the Ugly.

by James Wheeler

June 30, 2014

The decision of the Supreme Court today in the Hobby Lobby case protects the religious liberties of the closely held for-profit corporations objecting to providing abortifacient contraceptives. However, there is much else in the decision to be concerned about for future religious liberty challenges. There are also things in some of the opinions that ought to be downright frightening to religious liberty advocates.

First, there are several aspects of the decision that are good. The Court recognized that corporations are protected by the Religious Freedom Restoration Act (RFRA). Limited for now to closely held corporations, the Court embraced the important fact that corporations exist to further the interests of their constituents, such as shareholders and officers. If for-profit corporations could not exercise religion, religious individuals would be faced with a nigh impossible “Hobson’s choice” of maintaining their religious rights and forgoing the significant advantages of the corporate form, or incorporating and giving up their religious rights.

As importantly, the Court refused to accept the government’s attempt to re-characterize and minimize the Hahn’s and Green’s religious objection. The government sought to characterize the objection as only relating to the use of abortifacient contraceptives directly, ignoring completely the religious nature of their objection to complicity in providing access to the contraceptives at issues. The Court wisely refused to accept that re-characterization, stating that it was not the Court’s job to evaluate the validity of the individual’s belief.

Those two things are rightfully a cause for celebration, but the Court’s decision leaves much else to be desired. The first thing that should cause religious liberty advocates to be concerned is the Court’s treatment of the compelling interest test. Although the majority opinion, written by Justice Alito, expressed skepticism of the idea that providing contraception coverage was a compelling state interest in the face of all the other exception, Justice Alito expressly declined to rule on that question. He assumed for the purposes of the rest of the decision that the government had a compelling interest in providing universal contraceptive coverage. That is not necessarily a problem, the Court often assumes issues without deciding them if the case can be decided on other grounds. However, what is clear from Justice Kennedy’s concurrence is the reason they assumed that answer without deciding it: Justice Kennedy believes it is compelling government interest and therefore would not have joined the majority if they had decided against the government on that question.

Justice Kennedy’s concurrence provides another cause for concern. Because he necessarily provides the fifth vote in a 5-4 decision like this, his opinion, limiting the majority’s holding, controls. Unfortunately, he bases the decision that the contraceptive mandate is not the required “least restrictive means” on the availability of the accommodation provided to religious non-profits. That is, he decided that the government’s decision to allow religious non-profits to be exempt from coverage but force the insurance company to provide the abortifacient contraceptives was sufficient for for-profit corporations as well. This foreshadows a defeat in the case by some of those religious non-profits challenging the requirement that they be complicit in arranging the alternative coverage. Even though the 11th Circuit just sustained one such challenge based on today’s ruling, it appears likely the Supreme Court will not have a majority for upholding that decision. Although the majority of the Court expressly declined to decide that question, the Kennedy’s concurrence makes it unlikely he will join with the four others in today’s majority to rule in favor of those entities in a later decision.

Justice Ginsburg’s dissent provides what is the ugliest (and most frightening) part of today’s decision. Although she was in dissent, her manifest contempt for you and I should concern us. She dismisses as “ilk” those who believe in Biblical sexual morals and lumps them in with racists. Unfortunately, the majority, in dismissing her concerns, leaves the door open to holding the government can rightfully make Biblical sexual morals illegal in the workplace. Although the majority, rightfully, responds to Justice Ginsburg’s criticism by stating today’s decision does not threaten laws prohibiting racial discrimination, the majority doesn’t defend the right of individual’s to conduct their business in accord with Biblical sexual morals.

Although today’s decision is rightfully a cause to celebrate, it also leaves a lot to be desired for protecting religious liberty in the public square.

Supreme Court Delivers Momentous Religious Freedom Victory

by FRC Media Office

June 30, 2014

WASHINGTON, D.C.- Family Research Council (FRC) praised today’s ruling by the U.S. Supreme Court upholding religious liberty and protecting the conscience rights of family businesses who object to being forced to pay for the coverage of sterilizations, contraception and drugs that have the potential to destroy an unborn child.

FRC President Tony Perkins learned of the ruling this morning as he met with the Hahn family, founders and owners of Conestoga Wood Specialties, which were represented by Alliance Defending Freedom attorneys in this lawsuit challenging the Obama administration mandate.

Perkins made the following comments:

The Supreme Court has delivered one of the most significant victories for religious freedom in our generation. We are thankful the Supreme Court agreed that the government went too far by mandating that family businesses owners must violate their consciences under threat of crippling fines.

All Americans can be thankful that the Court reaffirmed that freedom of conscience is a long-held American tradition and that the government cannot impose a law on American men and women that forces them to violate their beliefs in order to hold a job, own a business, or purchase health insurance.

The unfair HHS mandate gave family businesses two non-choices: either violate your deeply held moral beliefs and comply by paying for drugs and services to which you object, or pay crippling fines of up to $100 per day, per employee, for non-compliance. This mandate threatened the jobs, livelihood and healthcare of millions of Americans and forced those who stood up for their conscience, like Hobby Lobby and Conestoga Wood, to either comply or be punished.

Thankfully, the threat the HHS mandate imposed on Americans has been deemed unlawful today as a violation of core religious freedom rights. While we celebrate this landmark decision, it is our hope that lower courts will follow the Supreme Court’s lead and protect non-profits like Little Sisters of the Poor, Priests for Life, and Wheaton College from the unfair HHS Mandate,” concluded Perkins.

President Obama’s Revolt Against American Liberalism

by Robert Morrison

June 13, 2014

What is not generally appreciated today is how far President Obama has taken the country from the roots of classic American Liberalism. It is one thing for conservatives and partisan Republicans to decry Mr. Obama’s rule by Executive Order, his governing by mandate. Such opposition, when principled, is what our system is designed to foster. “The business of the opposition is to oppose,” is the phrase that best describes a vibrant two-party democracy. The idea behind that is that it is in the give-and-take of open debate that the best policies for the whole country will be determined.

We know Mr. Obama actively dislikes open debate. He has declared broad areas of American public life off limits to debate. The climate change issue is “settled.” He and most fellow graduates of Ivy League law schools consider Roe v. Wade “settled law.” The late Sen. Arlen Specter (R-D-Penn.) went so far as to call that most unsettling ruling a “super precedent.”

Marriage is another issue the president considers now settled. No matter that the position upon which he was elected in 2008, and the position held by virtually all his Democratic opponents cleaved to in that contest is the position they have now abandoned. They’ve evolved, they tell us, and now that’s “settled.”

To understand how radically President Obama has departed from American Liberalism, we need only to compare his record with that of the U.S.’ most sustained, arguably most successful, example of liberal government.

Just as conservatives regularly invoke Ronald Reagan’s electoral triumphs, liberals look to the four election victories of Franklin D. Roosevelt. FDR is their model for a genuinely popular activist government committed to liberal change.

But an important recent article in The New Republic by Robert Kagan brings us a startling quote from Roosevelt in 1941 that shows the stark differences between FDR’s American Liberalism and President Obama’s essentially European leftism.

The “institutions of democracy” would be placed at risk even if America’s security was not, because America would have to become an armed camp to defend itself. Roosevelt urged Americans to look beyond their immediate physical security. “There comes a time in the affairs of men,” he said, “when they must prepare to defend, not their homes alone, but the tenets of faith and humanity on which their churches, their governments, and their very civilization are founded. The defense of religion, of democracy, and of good faith among nations is all the same fight. To save one we must now make up our minds to save all.”

President Roosevelt was trying in the speech quoted above to prepare Americans for what he saw as an urgent necessity to defend democracy by fighting against Hitler and the Nazi menace.

The speech, however, stands out almost as a statue in a great museum illuminated by a sudden flash of lightning from a threatening storm outside: Notice what Franklin Roosevelt places on a par with men defending their own homes: “the tenets of faith and humanity.” And these are shown as foundational for “their churches, their governments, and their very civilization.”

Roosevelt was a religious man. His faith had deepened in his early bout with paralyzing polio. He doubtless saw his own rise to the pinnacle of American politics as a result of divine Providence.

In August, 1941, four months before the U.S. was attacked at Pearl Harbor, President Roosevelt sailed aboard the USS Augusta to a secret rendezvous with Britain’s Prime Minister, Winston Churchill. The liberal Roosevelt braved death to meet with the conservative Churchill. Those chilly waters of the North Atlantic were infested with German U-boats. Roosevelt’s and Churchill’s warships would have been prime targets for sinking.

When FDR’s son Elliott went to see Churchill in his plush stateroom, aboard HMS Prince of Wales, anchored in the cold, black waters of Placentia Bay, Newfoundland, he told the wartime Prime Minister “father thinks you are the greatest man in the world.” Elliott added “my father is a very religious man.”

Churchill already knew that. That’s why he chose the hymns that would be sung by thousands of British and American sailors in a joint worship service on board the Royal Navy battleship. Prince of Wales still bore scars from the recent pursuit and sinking of the great German warship, Bismarck.

The Prime Minister sang lustily if off key, joining his new American friend in “O God Our Help in Ages Past,” “Eternal Father Strong to Save,” and “Onward Christian Soldiers.”

Roosevelt was deeply moved and it shows in the old newsreels. He knew that Nazism was anti-Christian even as it was murderously anti-Semitic.

President Obama’s leftism derives none of its strength from these Christian sources. During the entire twelve years of FDR’s popular administration, there was never anything remotely like the ObamaCare Mandates that so menace religious freedom in America.

When he greeted the first Soviet ambassador to the U.S., Maxim Litvinov, FDR sternly lectured that atheist Communist about the need for greater religious freedom in the USSR. He thought, doubtless naively, that the grandson of a rabbi would understand how essential religion is to a healthy state.

Today, as we await the U.S. Supreme Court’s verdict in the Hobby Lobby case, we are concerned that the four liberal justices — Breyer, Ginsburg, Sotomayor, and Kagan — will line up against the ideals of religious freedom that FDR and liberals of his era would have instinctively understood and respected.

Nor is it Christians alone whose freedoms are threatened under the Obama administration. The Union of Orthodox Jewish Congregations of America shares our concerns with the HHS Mandate.

The [Obama] Administration’s ruling makes the price of…an outward approach [to our fellow Americans] the violations of an organization’s religious principles. This is deeply disappointing.

To our Jewish fellow citizens, whose religious freedom is also threatened by the Obama administration, we can only say: Amen!

Let us pray for a liberty-affirming result from the Supreme Court.

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