Tag archives: Conscience Protection

Christians Rejoice as Sudan Moves Toward Embracing Religious Freedom

by Arielle Del Turco

July 21, 2020

I am very pleased, God has answered our prayers,” Noha Kassa, a Christian leader in Sudan, proclaimed earlier this month in response to the repeal of Sudan’s infamous apostasy law. 

For years, Sudan had topped lists of worst violators of religious freedom in the world. But all of that changed in the spring of 2019 when the military overthrew the longstanding President Omar al-Bashir. Since then, the joint military-civilian Sovereign Council has been steadily enacting reforms, including reforms recommended by the U.S. Commission on International Religious Freedom.

In July, the government repealed Article 126 of Sudanese criminal law, which prohibited apostasy and required the death penalty as punishment if the accused did not repent. Sudan is the only Islamic-majority country to repeal an apostasy or blasphemy law in the last two years.

In Muslim-majority countries like Sudan, apostasy laws are intended to keep people from abandoning Islam. Such laws are an affront to religious freedom because they prevent people from choosing and living out their faith as their conscience dictates.

Sudan’s apostasy laws became famous around the world, thanks to the case of Mariam Ibraheem. In 2014, Mariam was sentenced to death for apostasy. With a toddler at home, she gave birth to her second child in jail. Mariam had been raised by her Christian mother, though her father was a Muslim. Before marrying her Catholic husband, Mariam joined the Catholic Church in 2011.

Mariam’s case prompted an international outcry, and pressure from foreign governments eventually prompted the Sudanese government to release her. Now, the law that once sentenced her to death has thankfully been repealed.

While repealing such an oppressive law may seem like an obvious move to those of us in the West, this act required Sudanese leaders’ courage. There are radicals in Sudan who did not want to see this change happen and would prefer to see Sudan’s legacy of religious repression continue. The current Sudanese government should be applauded for its efforts to create a freer society for its people.

Apostasy, blasphemy, and anti-conversion laws continue to plague religious minorities in many parts of the world. As a part of the State Department’s effort to prioritize international religious freedom in its foreign policy, U.S. diplomats should consistently urge every government who maintains one of these laws to repeal them in diplomatic meetings.

Sudan’s move toward embracing religious freedom is worth celebrating. However, it also reminds us that apostasy laws are still on the books in several countries, including Iran, Saudi Arabia, and Mauritania. Sudan’s example proves change is possible, and it should encourage us to advocate for the repeal of laws oppressive to religious liberty everywhere they remain.

China Is About to Clamp Down on Hong Kong

by Arielle Del Turco

June 26, 2020

Secretary of State Mike Pompeo announced on June 26 that the U.S. will impose visa restrictions on Chinese officials “responsible for eviscerating Hong Kong’s freedoms.” This is a good step for the people of Hong Kong desperately looking for a lifeline as they watch their freedoms get trampled by the Chinese government.

Last year’s pro-democracy protests, which captured global attention, initially targeted a proposed extradition law that would have allowed Hong Kong residents to be extradited to mainland China and subjected to its corrupt judicial system. Yet, this year’s threat to Hong Kong’s freedom is much worse. China’s National People’s Congress is expected to ratify a sweeping new national security law for Hong Kong next week. Newly released details indicate the law will damage many of the freedoms Hong Kongers have long enjoyed, including religious freedom.

According to the Sino-British Joint Declaration signed in 1984, Hong Kong is meant to enjoy a high degree of autonomy for 50 years following the city’s return to China in 1997. With the new security law, Hong Kong’s autonomy—and the “one country, two systems” principle that has guided its government—is all but destroyed. The new law will allow Beijing to override Hong Kong law, establish a national security office in Hong Kong to investigate crimes, and enable Beijing to suppress protests or public opposition.

China is one of the world’s worst violators of human rights and religious freedom. So, what does Beijing’s encroachment into the legal system in Hong Kong mean for its religious communities?

Firstly, Christian pastors and clergy members who participated in Hong Kong’s anti-extradition bill protests may be punished for their participation. Christians and Christian leaders played a pivotal role in pro-democracy demonstrations last year. The hymn “Hallelujah to the Lord” became an anthem for protestors. Meanwhile, Chinese officials insinuated that demonstrators were terrorists.

No dissent is tolerated in mainland China, and Hong Kong’s religious leaders who are vocal against Beijing may be extradited and tried under the new law. Christian NGOs are now expressing concern for outspoken religious leaders such as Cardinal Joseph Zen and Auxiliary Bishop Joseph Ha Chi-shing, who supported the pro-democracy movement.

Secondly, the new law might pave the way for Hong Kong’s Christian leaders to be silenced. According to an outline of the law released by Chinese officials, the national security concerns Beijing claims the right to address include secession, subversion of state power, terrorism, and collusion with foreign forces.

China’s broad accusation of “subversion of state power” may sound familiar. At the end of 2019, well-known house church pastor Wang Yi, who led one of China’s largest unregistered churches, was sentenced to nine years in prison for “inciting to subvert state power.” Beijing uses this phrase, among others, as an excuse to lock away anyone who publicly objects to the government’s practices. Should Hong Kong’s pastors expect to be next?

Thirdly, in addition to harming believers in Hong Kong, this new law is likely to have negative effects on faith in mainland China. Christianity is a legally recognized religion. However, Christian churches that register with the Chinese government are pressured to adapt their religious beliefs to Chinese Communist Party values, including socialism. To avoid government interference, many unregistered house churches operate outside of regulation but lack resources and pastoral training as they try to practice authentic Christianity. For a long time, house churches on the Chinese mainland have found support from Hong Kong’s Christians.

Churches and pastors in Hong Kong provide Bibles, training, and financial support to house churches on the mainland. One study from 2014 found that over 60 percent of Hong Kong’s churches “engage in work on the mainland, illicit or otherwise, including preaching and theological training.” If Hong Kong Christians are subjected to the same so-called “national security” laws that put Pastor Wang Yi in prison for subversion of state power, this may cut off the support and resources Hong Kong pastors feel they can safely offer. For the mainland’s increasingly oppressed churches, support from Hong Kong is a lifeline they can’t afford to lose.

On June 25, the U.S. Senate passed a resolution introduced by Senator Josh Hawley which condemned Beijing’s national security law and called on free countries to stand against Beijing’s effort to destroy basic liberties and human rights in Hong Kong. The Senate also passed the Hong Kong Autonomy Act which would impose sanctions on individuals, entities, and banks that aid Beijing’s campaign to control Hong Kong and destroy its autonomy. The U.S. House of Representatives should follow suit and swiftly pass the Hong Kong Autonomy Act and send it to the president’s desk.

When the National People’s Congress announced its proposed national security law, Beijing broke its agreement to allow Hong Kong autonomy. For Hong Kong residents who cherish their political and religious freedom, the effects will be widespread and devastating. As they fear for their future, U.S. officials must do everything within their power to support the people of Hong Kong. This city has long been a beacon of freedom and prosperity in contrast with Chinese authoritarianism. Chinese encroachment into Hong Kong is a tragedy for the free world, and it is one that the United States must not watch unfold silently.

We Must Never Forget the Tiananmen Square Massacre

by Arielle Del Turco

June 4, 2020

Every year for the past 30 years, crowds have gathered in Hong Kong on June 4th to light candles, hear from former Chinese pro-democracy activists, and mourn the infamous massacre of student demonstrators by the Chinese People’s Liberation Army in 1989. This year, no legal vigil was permitted, but that didn’t stop thousands from bringing white candles to a Hong Kong park to remember the tragedy that came to be known as the Tiananmen Square Massacre.

Hong Kong authorities refused to allow the annual public remembrance to be held this year, claiming to be concerned about the coronavirus, but such displays are always banned on the mainland. Many of the freedom-loving people of Hong Kong—who had long identified with those who called for freedom in Tiananmen Square—now fear the Chinese government is silencing Hong Kong dissenters much like they did in 1989.            

Beijing suppresses these annual memorials. Yet, the world must remember the tragedy that took place three decades ago because it reveals what the Chinese government is willing to do—even to its citizens: to squash perceived threats to its authority.

Thirty-one years ago today, the Chinese People’s Liberation Army fired live ammunition into crowds of their own people. Chinese civilians had been demonstrating in Tiananmen Square in Beijing for weeks, calling for a more democratic government. Their protests ended in a bloody crackdown that shocked the globe.

It is estimated that several hundred to several thousand people died that day, but an official death toll was never released. Family members of the deceased victims still beg for answers.

To this day, the Chinese government does not admit wrongdoing during the Tiananmen Square Massacre. When the government of Taiwan recently called upon Beijing to apologize for the violent crackdown three decades ago, a spokesman defended the legacy of communist party leadership. Chinese Foreign Ministry spokesman Zhao Lijian declared, “The great achievements after the founding of new China fully demonstrate that the development path chosen by the new China is totally correct and in line with China’s national conditions.”

Yet, the often-violent legacy of Chinese Communist Party (CCP) rule is nothing to take pride in. Mao’s Great Leap Forward and Cultural Revolution took drastic human tolls and denied the Chinese people basic human rights.

The Chinese government still withholds such rights from its citizens today. Among them is freedom of religion, a right intimate and fundamental to the human conscience.

In the northwestern region of Xinjiang, the government is in a full-on assault against religion. At least 1.8 million Uyghur Muslims are forcibly detained in internment camps where they are brainwashed and abused. Outside the camps, the rest of the region is patrolled with facial recognition technology and other means to tightly control the oppressed Uyghur minority.

Throughout the mainland, Christians are intimidated, and churches are surveilled as crosses are torn down from their buildings. Well-known house church pastor Wang Yi sits in prison serving a nine-year sentence—a grave reminder to other pastors that they ought not step out of line.

Perhaps most alarmingly, evidence is mounting that the Chinese government is forcibly harvesting organs from political prisoners. These are thought to be mostly from Falun Gong practitioners, a long-persecuted faith group entirely undeserving of the abuse they endure. 

The Chinese Communist Party may want the world to forget its ruthless history, but it is critical that we keep the memory of the Tiananmen Square Massacre alive.

The Tiananmen Square Massacre exposed the blatant disregard with which the Chinese Communist Party views human lives. This disregard is unfortunately not relegated to history—it still affects the Chinese people, including religious believers. Today, we remember the Tiananmen Square Massacre and its countless victims. But let us also remember those who continue to suffer under the Chinese government’s oppressive policies.

The Trump Administration Is About to Do the Right Thing on Religious Freedom — Again

by Travis Weber, J.D., LL.M. , Mary Beth Waddell, J.D.

May 22, 2020

The Department of Health and Human Services (HHS) is about to finalize a rule it proposed last year to ensure that religious freedom and conscience are protected, the medical profession is not politicized, and patient care is prioritized. We urge this rule’s swift finalization.

This rule is great news for patients and the health care community alike. In 2016, under the Obama administration, HHS issued regulations on Section 1557 of the Patient Protection and Affordable Care Act defining “sex” in the context of “sex discrimination” to incorporate “gender identity” and “the termination of pregnancy”. Health care institutions sued, contending that the heavy hand of government was forcing them to violate their conscience and threatening their ability to operate. Understanding that HHS had exceeded its authority, a federal judge issued an injunction to prevent the Obama administration rule from taking effect.

Now, President Trump plans to clean up this mess, and protect religious freedom, for our caregiving institutions nationwide. This policy change will enable the medical community to fulfill the Hippocratic oath, while protecting the convictions of those in that community who want to hold to their religious beliefs and consciences about the biological understanding of sex.

President Trump’s proposed rule is also pro-life, and will ensure that the pro-life convictions of medical professionals will be honored. The inclusion of “termination of pregnancy” in the Obama administration rule could be read to require the provision of, and coverage or referral for, abortion. This could then lead to federal financial assistance being conditioned on the promotion and performance of acts that devalue the sanctity of human life. Thus, removing this language is important to ensuring that federal laws protecting the right of healthcare workers not to provide or refer for abortion will be upheld. 

We applaud HHS for standing with science and religious liberty to ensure that the medical community is free of political chains and can simply focus on providing the best possible care to their patients according to the best medical science.

The finalization of this rule is a high priority for religious freedom, and very important to protecting the faith of many throughout our country.

It should be finalized promptly, so that those with long-running conscience and religious freedom concerns in this area can finally put them to rest.

Crimes” in the Criminal State of China

by Daniel Hart

December 5, 2019

The video is chilling. In a recently released clip from inside a Chinese police station, a lone man sits strapped into a metal cage-like contraption that looks like it is meant to subdue a wild animal, but is actually meant for the interrogation of ordinary citizens. With downcast eyes and a timid voice, he softly answers a series of questions from his interrogators, apologizing for drinking “a bit too much” and speaking “nonsense.” His crime? He apparently made a negative remark or two on social media about the police confiscating motorcycles.

What’s wrong with the police confiscating motorcycles?” the interrogator demands.

Nothing wrong with that,” the man feebly responds.

At the end of the video, after repeatedly expressing his sorrow for his “crime” in response to multiple demands by the interrogators to explain himself, the man makes a final plea for mercy. With a bow of his head, he solemnly declares, “Uncle police, I’m so sorry. I’m wrong. I know that now. Please forgive me. I won’t do it again, ever.”

Interrogations like these are now becoming a routine part of life in China. With no civil rights and an encroaching regime that monitors every aspect of daily life, ordinary citizens like this man know that if they say something on social media that the government doesn’t like and say the wrong thing to the police, they could end up in prison, tortured, or killed.

But this is just the tip of the iceberg of the human rights atrocities and abuses that the Chinese Communist Party (CCP) is perpetrating against its own people. Here is a brief list:

  • As we have written about previously, the CCP is forcibly harvesting the organs of religious minorities to fuel an organ industry to the tune of $10-20 billion, which provides up to 85 percent of the world’s organ transplants (more on that later).
  • The CCP has been persecuting and executing the traditionally Muslim Uyghurs since at least the 1990’s. Today, over 1.5 million ethnic Uyghurs are currently imprisoned in what the CCP calls “concentrated education and training schools,” in which detainees are subjected to indoctrination sessions, torture, sexual assault, and execution.
  • The CCP continues to mandate the number of children couples can have, which recently changed from a one-child to a two-child policy. This system is enforced through exorbitant monetary fines, forced abortions, and forced sterilizations. It is estimated that there have been more than 330 million induced abortions in China since the one-child was first implemented in the early 1980’s. A significant (but unknown) percentage of these abortions were forced.
  • The CCP’s reign of terror against religious practitioners has been ongoing since the 1960’s. Currently, religious practice is being suppressed by any means necessary.
  • The CCP is implementing a “social credit system” that rates the behavior of Chinese citizens so that their ranking fluctuates up and down. Depending on your score, you can be banned from buying plane and train tickets, your children can be banned from attending the best schools, you can be denied jobs, and you can be publicly named a “bad citizen,” among a host of other injustices.

As these human rights atrocities and abuses illustrate, China is in fact a criminal state. The final report compiled by the China Tribunal (which amassed definitive evidence of forced organ harvesting that has and is currently happening in China) makes this conclusion:

Governments and any who interact in any substantial way with the PRC [People’s Republic of China] including:

  • Doctors and medical institutions;
  • Industry, and businesses, most specifically airlines, travel companies, financial services businesses, law firms and pharmaceutical and insurance companies together with individual tourists,
  • Educational establishments;
  • Arts establishments

should now recognise that they are, to the extent revealed above, interacting with a criminal state.

FRC could not agree more. Organizations like the NBA, Hollywood, and other industries that have conveniently ignored the human rights atrocities and abuses committed by the CCP for financial gain must answer to the fact that they are dealing with a criminal state. And as we have repeatedly pointed out, the United States must address these atrocities and abuses in its current and future trade and diplomatic dealings with the CCP.

Little Sisters of the Poor Are Once Again Denied Freedom of Conscience

by Katherine Beck Johnson

October 23, 2019

The Little Sisters of the Poor were back in court yet again yesterday, this time losing at the U.S. Court of Appeals for the Ninth Circuit.

Back in 2011, the Department of Health and Human Services (HHS) issued a federal mandate as part of the Affordable Care Act (ACA). The mandate required employers to provide contraceptives, including the week-after pill, free-of-cost in their health insurance plans. HHS offered only a very narrow religious exemption. So narrow, it did not include non-profits—such as the Little Sisters of the Poor, a Catholic order of nuns who assist the impoverished who are at the end of their lives with nowhere else to go. These nuns have dedicated their lives to their faith and to serving the poor. Yet, these women were sued and told that they must violate their conscience by providing contraception through their insurance.

In May 2016, the Supreme Court unanimously overturned lower court rulings against the Little Sisters. The Court said the government should be provided an opportunity “to arrive at an approach going forward that accommodates the petitioners’ religious beliefs.” On May 4, 2017, President Trump issued an executive order that directed the secretaries of federal agencies to consider regulations that would address the conscience-based objections to the ACA’s contraceptive mandate. On November 7, 2018, the federal government complied with the Supreme Court’s ruling and the president’s executive order by issuing a new rule protecting religious liberty. This new rule provided religious ministries, entities, and persons holding sincere religious beliefs with an exemption to the contraceptive and sterilization coverage.

Soon after the rule was issued, states including Pennsylvania and California sued the federal government to ensure that the Little Sisters of the Poor would not be exempted from providing contraception. Even though these states have programs that provide contraceptives to women who want them, these states insist that non-profits, including the Little Sisters, must either be forced to violate their conscience or else cease to exist.  

In July 2019, the Third Circuit ruled against the Little Sisters of the Poor. The Third Circuit claimed that the Women’s Health Amendment to the ACA did not grant the Health Resources and Services Administration (HRSA, a component of HHS) the authority to exempt entities from providing insurance coverage for contraceptive services. On October 22, 2019, the Ninth Circuit issued a similar ruling and affirmed the preliminary injunction. The Ninth Circuit said, “the statute delegates to HRSA the discretion to determine which types of preventative care are covered, but the statute does not delegate to HRSA or any other agency the discretion to exempt who must meet the obligation.” Thus, the Ninth Circuit and the Third Circuit prevented relief for the Little Sisters of the Poor by issuing an injunction and blocking the implementation of a rule that would allow religious protections.

The Supreme Court needs to settle the debate and rule that the government cannot require people and groups to violate their conscience by providing contraceptive services. The Court should uphold the HHS rule, which protects the inherent human right of religious liberty. This liberty promotes the common good and allows society to flourish. The Little Sisters of the Poor certainly promote the common good as they assist the poorest in society. Violating their conscience ought not to be a precondition for the Little Sisters assisting those most in need.

Vermont Nurse Forced to Participate in an Abortion Despite a Conscience Objection

by Connor Semelsberger, MPP

August 28, 2019

The Department of Health and Human Services (HHS) announced today that they are issuing a violation notice to the University of Vermont Medical Center (UVMMC) because they forced a nurse to participate in an abortion despite a conscience objection.

In 2017, UVMMC (located in Burlington, Vt.) began performing abortions on site without notifying their employees. A nurse had expressed objection to assisting in abortions for many years, and was even included on a list of staff with objections. However, UVMMC purposefully assigned the nurse to assist in an abortion despite her objection to the horrific procedure. The nurse did not know that the procedure was an abortion until the nurse walked into the operating room and the abortionist said, “Don’t hate me.” The nurse then objected to assisting in the abortion. There were other staff on site who could have assisted with the abortion, but UVMMC forced the nurse to participate in the abortion or be subject to discipline that could include loss of licensure. In the end, the nurse decided to participate over fear of harsh retaliation by the health center.

Choosing between your sincerely-held religious or moral beliefs and your career is a decision that no health professional should have to make. When someone is pressured to violate their conscience or lose their livelihood, it leaves the health care provider in a situation that creates great emotional and spiritual turmoil. Even though abortion has been legal in America for over 40 years, our federal laws have fortunately protected the conscience rights of health care providers. In the 1970s, the Church Amendments were enacted to protect the conscience rights of individuals and entities that object to performing or assisting in the performance of abortion or sterilization if it would be contrary to the providers’ religious or moral convictions.

On May 9, 2018, the nurse from Vermont filed a complaint with the Office of Civil Rights (OCR) at HHS. HHS responded by fulfilling their duties to enforce the Church Amendments and launched an investigation into the complaint, contacting UVMMC to seek cooperation, but the hospital refused to conform its policies to the law and would not produce witnesses to be interviewed about this incident. Now, UVMMC has 30 days to notify HHS that they will change their current policies that force staff to participate in abortions and take steps to remedy the effects of their past actions. If they do not comply in this timeframe, they could be barred from the $1.6 million in federal funding they received.

This is now the third conscience compliant that OCR has investigated since President Trump took office. The other complaints dealt with the states of California and Hawaii forcing pregnancy resource centers to post materials that advertise for abortion. Because of action by OCR, both complaints have been resolved. The enforcement of these conscience protections is yet another example of how the Trump administration has followed through in protecting life, conscience, and religious liberty. These enforcement actions should encourage health care providers who feel like their employer is coercing them to participate in an abortion to file a complaint with OCR, for as we see above, the Trump administration will certainly enforce our conscience laws and defend their rights.

Dilshat Perhat Ataman: A Prisoner of Conscience in China

by Arielle Del Turco

July 3, 2019

As the United States and China continue to discuss trade, we have a unique opportunity to raise religious freedom concerns such as that country’s ongoing detention of Christian pastors and mass repression of Uyghur Muslims. It is therefore encouraging to see Family Research Council President and chair of the United States Commission on International Religious Freedom (USCIRF) Tony Perkins announce yesterday that he was formally adopting Dilshat Perhat Ataman as a prisoner of conscience to highlight his case of unjust imprisonment due to his faith.

Dilshat is a Uyghur Muslim currently detained in a “re-education” internment camp in China’s Xinjiang province.

Dilshat founded and managed a popular website called “Diyarim,” which promoted Uyghur history and culture and provided a social media platform to the Uyghur community. In 2009, he was arrested by Chinese authorities and charged with “endangering state security” after a comment was posted in a chatroom on his website about the Chinese government’s suppression of Uyghur protests.

After serving five years in prison, Dilshat was released in 2014. Yet, his freedom was short-lived. In June 2018, he was rearrested without reason from the Chinese authorities—this time he was taken to a “re-education” internment camp.

Those who have been released from these camps describe how Uyghurs are tortured during interrogation, live in crowded cells, and are subjected to extensive daily regimens of Chinese Communist Party indoctrination (as seen in this BBC report). Detainees routinely face harsh treatment and are forced to live in unhygienic conditions, sometimes leading to their death. 

The Chinese government has invested a lot of resources to surveil and suppress Uyghur Muslims in Xinjiang.

Uyghurs are a Turkic ethnic group who are mostly Muslim. Yet, it is not a contradiction to say that Christians must care about the suffering they face due to their religious beliefs and advocate on their behalf.  

Christians believe that God is in control of human affairs yet gives people the freedom to choose their beliefs. Just as God gives people that freedom, we should defend the freedom of others to choose and live out their religious convictions without any government harassing, oppressing, imprisoning, or killing people for expressing their basic right to religious freedom.

What the Chinese government is doing to the Uyghurs is evil—and that should be something everyone is concerned about.

Dilshat is one of at least 880,000 and possibly more than 2 million Uyghurs who are detained in Chinese “re-education” internment camps.

The injustice of China’s detention of Dilshat Perhat Ataman in a “re-education” camp is obvious. Hopefully, by bringing Dilshat’s case to light, there will be a greater awareness of the plight of Uyghur Muslims who are targeted for persecution because the Chinese government views their religious beliefs as a threat to the political ideology and authority of the Communist Party.

Summary of Oral Arguments in Sebelius v. Hobby Lobby and Conestoga Wood Specialties Corporation v. Sebelius

by Travis Weber, J.D., LL.M.

March 27, 2014

The post-oral-argument predictions in the Hobby Lobby case will continue to pour out as various entities (more or less interested in the outcome) make guesses about which way the Supreme Court will rule now that the justices have had a chance to quiz the attorneys for each side. The truth is, no one knows what will happen. Nevertheless, several things were noteworthy and other things not noteworthy, about this morning’s arguments. My review of the arguments (with emphasis on noteworthy sections) is below (page numbers are those listed on the Supreme Court’s official transcript).

Arguments began with Paul Clement, the attorney for Hobby Lobby and Conestoga, presenting his clients’ case first. After some initial questions about whether Congress meant to include corporations within the Religious Freedom Restoration Act’s (RFRA) protections (pp. 4-9), the justices’ opposition to Hobby Lobby’s position predictably centered on what other claims corporations might bring should the Court rule for the Green family and against the government. Justices wondered whether a ruling for Hobby Lobby would lead to corporations objecting on religious grounds to providing vaccinations, blood transfusions, and the like. Hobby Lobby’s attorney Paul Clement disputed this implication, pointing out that the Court could be trusted to wade through these issues under RFRA. Furthermore, if the “parade of horribles” was likely to occur, where was it? RFRA has been around since 1993. Clement pointed that none of the claims over which the justices expressed concern had been brought (or they were brought but didn’t succeed) “notwithstanding the fact that the government concedes that sole proprietorships and partnerships and nonprofit corporations are all protected by RFRA” (pp. 14-15).

Clement was then questioned about how a corporation could exercise religion (pp. 17-21), but the argument drifted off into a discussion of what costs Hobby Lobby would incur if it refused to cover the contraceptives (pp. 17-29). A discussion subsequently ensued about grandfathered health plans, and then moved to the concept of burden shifting between the objecting employer and its employees (pp. 29-38). Clement noted that exemptions are allowed in the conscience law context — if a doctor objects to providing an abortion, the woman is not prevented from obtaining the procedure, but she must go to another provider (p. 38). Clement also pointed out that the government has available to it a less restrictive alternative than the current HHS mandate — allowing employees of objecting corporations to go on the exchanges and subsidizing them like it does for employees at companies with fewer than 50 workers (p. 40).

At this point, the government’s attorney, Solicitor General Donald Verrilli, took over and opened by arguing that the requested accommodation’s impact on third parties must be examined (pp. 43-46). He was then pressed by the justices on why the government insisted on hampering for-profit corporate religious exercise but not other religious exercise (pp. 46-49). When Verrilli said the Court had never ruled that corporations had a right to exercise religion, Justice Alito asked if “there’s something about the corporate form per se that is inconsistent with [a] free exercise claim” (p. 46). He followed: “Do you agree … that for­profit corporations must do nothing but maximize profits, they cannot have other aims … including religious aims?” (p. 47) Verrilli said no, but the point was made.

Verrilli then argued that ruling for Hobby Lobby would permit other problematic claims (pp. 52-53). He was pressed about the ability of corporations to have a racial identity (which courts have held), but said such a scenario was different from this case, which involves “exercise of religion — something the courts have never recognized corporations can do (p. 54). However, neither have the courts said corporations can’t engage in religious exercise. He was then pressed by Justice Kennedy about exemptions being given by the government apart from RFRA concerns (pp. 56-58). Verrilli explained that churches were exempt (as they have always been considered special under the law), but argued that the other companies and groups that do not have to pay were not actually subject to “exemptions” but were just categorized differently under the law (pp. 58-59). He was then pressed to explain when the grandfathered plans would end (pp. 59-60) — such continual “grandfathering” with slow and piecemeal implementation demonstrates the lack of a compelling government interest in enforcing the HHS mandate.

Justice Breyer then questioned Verrilli and asked him to explain how the government might meet the contraceptive needs of women less restrictively than enforcing the HHS mandate (pp. 64-69). Justice Kennedy quizzed Verrilli and said that according to the government’s logic, it seemed that a for-profit corporation could be forced to pay for abortions. Verrilli had to admit his logic allowed such a result, but he attempted to minimize the implication by noting there was no such law mandating abortions on the books at this time (p. 75). He followed by pointing out that the federal and state laws regarding abortion don’t consider the “particular forms of contraception” at issue in this case to cause abortions (pp. 75-77).

Verrilli had trouble batting away hypotheticals from Justices Alito and Breyer showing the problems corporations may face in bringing religious exercise claims (should the government win in this case) challenging laws banning kosher or halal slaughter methods (pp. 78-81). He concluded by pointing out that companies were going into the public sphere, and this would be the first time a company could be permitted to override statutory benefits under a Free Exercise or RFRA claim (p. 81). At the last moment, Verrilli was questioned by Justice Scalia about the government’s claim that it was not drawing a distinction between for-profits and non-profits (p. 82). Justice Scalia quite rightly noticed differences with how the government was treating the two groups (p. 82).

Paul Clement then had the last word. During his few minutes of rebuttal argument, Clement pointed out that Congress has applied the abortion conscience laws to all providers, including for-profit providers. But if Congress changed those laws, the government (according to its argument today) would take the position that RFRA does not apply to protect providers objecting on conscience grounds (p. 83). Clement also reminded the Court that if the government is going to burden religious exercise, its regulation has to do so in the least restrictive way. In this regard, Title X already provides for contraception coverage, so the government could provide contraceptive coverage through Title X (pp. 83-86). He also reminded the Court of one point Hobby Lobby already made in its brief — the government could simply pay for the contraceptives (p. 86). Clement concluded by noting that Congress has already spoken in an abundantly clear manner on the issue of religious freedom when it passed RFRA, but “[h]ere the agency has decided that it’s going to accommodate a subset of the persons protected by RFRA. In a choice between what Congress has provided and what the agency has done, the answer is clear” (p. 87).

With that, the arguments were concluded. A written decision in the case is expected in June 2014.

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