Finally, Supreme Court rules on contraceptive mandate

Yes, the Obamacare HHS mandate does violate fundamental rights, said justices willing to state the obvious.

The Religious Freedom Restoration Act (RFRA), signed into law under President Bill Clinton after near unanimous approval in the House and Senate in 1993, applied a two-pronged test to any attempt by government to impose a federal law that substantially burdens citizens’ free exercise of their religion. The first test requires the government to show it has a ‘compelling interest’ in enforcing such a sweeping law, and the second is that government was seeking the ‘least restrictive means’ possible to achieve its ends. There’s no way this federal fiat issued in January 2012 could possibly pass either of those tests.

The Becket Fund for Religious Liberty dubbed the HHS mandate ‘a contraception delivery scheme’, which describes it well. As the court cases piled up across the country and spectrum of employers from non-profit organizations to for-profit business owners, academic institutions to healthcare providers (see Little Sisters of the Poor v. Sebelius), government lawyers could not defend their claims coherently.

Here’s the breakdown of current cases against the federal government when those arguments have been heard in courts at all levels. Monday’s Supreme Court decision on Hobby Lobby will impact a great number of others, and certainly scored a victory for religious freedom.

The U.S. Supreme Court granted a landmark victory for religious liberty today, ruling in the case of Burwell v. Hobby Lobby that individuals do not lose their religious freedom when they open a family business. The court ruled 5-4 in favor of David and Barbara Green and their family business, Hobby Lobby, ruling that they will not be required to violate their faith by including four potentially life-terminating drugs and devices in the company’s health insurance plan or pay severe fines.

“This is a landmark decision for religious freedom. The Supreme Court recognized that Americans do not lose their religious freedom when they run a family business,” said Lori Windham, Senior Counsel for The Becket Fund for Religious Liberty and counsel for Hobby Lobby. “This ruling will protect people of all faiths. The Court’s reasoning was clear, and it should have been clear to the government. You can’t argue there are no alternative means when your agency is busy creating alternative means for other people.”

The decision also has important implications for over 50 pending lawsuits brought by non-profit religious organizations, such as the Little Sisters of the Poor, which are also challenging the mandate. In two different respects, the Supreme Court strongly signaled that the mandate may be struck down in those cases too. First, it rejected the government’s argument that there was no burden on the Green’s religious exercise because only third parties use the drugs. Second, it held that the government could simply pay for contraception coverage with its own funds, rather than requiring private employers to do so.

“The handwriting is on the wall,” said Windham. “The Court has strongly signaled that the mandate is in trouble in the non-profit cases, too.”

The Court upheld a June 2013 ruling by the Tenth Circuit Court of Appeals protecting Hobby Lobby and the Green family from the Health and Human Services (HHS) mandate. That mandate requires Hobby Lobby and co-founders David and Barbara Green to provide and facilitate, against their religious convictions, four potentially life-terminating drugs and devices in the company’s health insurance plan. The Greens argued that the mandate substantially burdened their religious beliefs in violation of a federal law, the Religious Freedom Restoration Act.

In an opinion by Justice Alito, the Court stated:

The plain terms of RFRA make it perfectly clear that Congress did not discriminate . . . against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs. . . . Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.”

Justice Kennedy’s concurrence added: “Among the reasons the United States is so open, so tolerant, and so free is that no person may be restricted or demeaned by government in exercising his or her religion.”

There will be plenty to cover and analyze on this in the days to come. But here’s some good background worth reading, artfully written with accurate citations by creative thinker Tod Worner, news coverage as a play in three acts. Written just over two months ago, after oral arguments were presented in the Supreme  Court by plaintiffs and government lawyers in the HHS mandate cases justices would decide later, it ended with this:

Plaintiffs and defendant would rest. The Court would adjourn. The verdict will come to us in June.

Who is this young, promising man – this main character in our play? Perhaps we can know by considering him in each act: The Speech, The Executive Order, The Court Case. Perhaps.

This play, in three acts, is far from finished. There is more to be said and done. Will it end as a comedy? Or a tragedy? How will it end? How, indeed? We shall see. We shall see.

We now see how the Supreme Court ruled on this day in this pivotal case. We’ll see what comes next. Stay tuned.

What the Supreme Court heard in HHS arguments

In a discussion about Tuesday’s oral arguments on two cases challenging the government’s coercive mandate, one legal counsel said “it was really oral arguments“.

The courtroom was lively and the justices engaged. A couple of pieces that pinpoint key moments to light.

Kathryn Lopez aptly refers back to the ‘parade of horribles‘ to describe the women justices’ engagement of the ‘what ifs’ involved in this case. Government attorneys tried to use it in their arguments.

One of the expected themes — because it was in the Department of Justice’s brief — during the Hobby Lobby/Conestoga Wood case before the Supreme Court yesterday was the idea of a parade of horribles that would come should the companies win their religious-liberty claim. Ed Whelan has written about this here…in response to the brief. The way the argument goes is that if you let employers opt out of abortion-pill and contraception coverage next employers are going to claim religious objections to sexual-harassment laws, minimum-wage laws, Social Security taxes, and vaccine coverage.

As Ed points out:

“The fact that the Obama administration has provided an exemption from the HHS mandate for houses of worship and the so-called “accommodation” rule for religious nonprofits shows that it recognizes that the HHS mandate substantially burdens religious exercise. Nothing comparable exists for DOJ’s examples.”

The “burden” test is essential to these cases and the whole HHS birth control delivery scheme. The Religious Freedom Restoration Act (known by shorthand as RFRA) which passed with full bipartisan support under the Clinton administration, holds a two-pronged test, that government cannot restrict religious freedom unless it produces convincing evidence of a compelling reason to do so,  and it is pursuing that action by the least restrictive means possible.

The government cannot pass that test on either count on the HHS birth control delivery mandate. Their attorneys have failed to produce anything approaching convincing evidence that they can pass that test, time and again, in the many lawsuits across the country over the past two years.

But here’s the real money moments in the dramatic exchanges in the high court Tuesday. Justice Anthony Kennedy was grilling the government’s attorney on whether allowing this mandate to go forward could extend government powers to authorize the compulsion to pay for abortions on a broader scale, since government attorneys had at that point conceded that IUDs can be abortifacents, and IUDs were part of the mandated coverage. The US Solicitor General (Don Verrilli) objected, saying current law “is to the contrary.”

But Kennedy persisted, saying the government was making a legal case that would permit that.

Verrilli continued to resist Kennedy’s simple hypothetical question, treating it as though he could not answer it unless there were really such a law on the books…

And then the chief justice intervened:

Chief Justice Roberts: I’m sorry, I lost track of that. There is no law on the books that does what?

Verrilli: That makes a requirement of the kind that Justice Kennedy hypothesized. The law is the opposite.

Roberts: Well, flesh it out a little more. What—there is no law on the books that does what?

Verrilli: That requires for-profit corporations to provide abortions.

Pay attention to this line of questioning.

Justice Kennedy began to speak at this point, and Chief Justice Roberts cut him off by pursuing Verrilli like a hound who has treed a raccoon:

Roberts: Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.

What Kennedy treated as hypothetical, in other words, Roberts pointed out is not hypothetical at all. It’s actual. It is this case. Hobby Lobby is an abortion case (emphasis added), and at this moment in the argument, Roberts may just have sewn up Kennedy’s vote. Not because Kennedy is morally perturbed by abortion itself; I doubt he is, much. But because he is probably very concerned, and rightly, with a regulatory mandate that forces people to violate their religious beliefs about the sanctity of life by providing and paying for abortions. Roberts spoke circumspectly about the employers’ “religious beliefs” about the drugs and devices that cause abortion, and it was right for him in this context not to say more. But they do cause abortion, and so this is, in a way that should be very important to Justice Kennedy, an abortion case.

Conclusion at this point:

Yes, this is an abortion case, and a religious freedom case, and a government-overreaching-its-authority case.

The Supreme Court will rule in June.

HHS mandate: Supreme Court begins to hear arguments

Or put bluntly, the government mandate to violate your conscience.

It’s as simple as that. No matter how much spin has been spun, and there has been much, it comes down to this.

Do Americans enjoy religious-liberty protections when they are at church, or do Americans enjoy religious-liberty protections when they are Americans?

That’s it. The Supreme Court hears oral arguments this week on that question.

Hobby Lobby is owned by a trust controlled by the Green family, observant Christians who make a point of carrying their faith into the marketplace, stocking Christian products and closing their stores on Sundays. They refuse to comply with parts of the Affordable Care Act’s contraception mandate, specifically the provision of products that they regard as actual or potential abortifacients, including intrauterine devices and the so-called morning-after pill, both of which can function to prevent an embryo from implanting in the uterus and thus surviving. Whether these products are properly regarded as abortifacients is a matter of some controversy, but the relevant question is not a technical one about the mechanisms by which these drugs and devices prevent pregnancy. Federal law protects religious liberty with no proviso that matters of conscience must be argued to the satisfaction of the American College of Obstetricians and Gynecologists before legal protections kick in.

Now here’s the money paragraph, the important explanation of the whole thing that helps understand what’s at stake in the claims to protection against government encroachment of religious freedom and conscience rights. Those claims are grounded in the Constitution and RFRA, the Religious Freedom Restoration Act.

While the issue is at heart a constitutional one, Hobby Lobby is not in this instance appealing to the First Amendment but rather to the Religious Freedom Restoration Act, which was passed by a unanimous House, a near-unanimous Senate, signed into law by President Bill Clinton, and certified as constitutional as applied to the federal government in a 2006 Supreme Court decision. The act sets a high standard that the federal government must meet when it burdens the free exercise of religion and was enacted in response to court decisions that had narrowed First Amendment protections. It is intended to reinstate the “Sherbert test,” which holds that in a case in which the involved parties hold a sincere religious belief and the federal government places a substantial burden on the exercise of that belief, then the federal government must both prove a “compelling state interest” in burdening religious exercise and — perhaps most important in this case — demonstrate that it has sought to secure that compelling interest in the least restrictive fashion.

That’s a two-pronged test the government cannot possibly pass in imposing the HHS mandate.

While it is hardly obvious that there is a compelling state interest in subsidizing access to contraception, which is widely available and inexpensive (a woman who required an emergency dose of Plan B once a quarter would still spend more annually on toothpaste), it is entirely implausible that the least restrictive way of achieving that subsidy is a nationwide legal mandate for coverage of those products at no out-of-pocket expense by every employer in the country offering health insurance — and the federal government will penalize them if they don’t offer it.

So…

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

So here we go.

Whatever the federal government might have done differently, the express purpose of the Religious Freedom Restoration Act is to prevent it from doing what it has done in the Affordable Care Act: ride roughshod over the free exercise of religion whenever doing so proves politically convenient.

The case is about more than the Green family and Hobby Lobby. There are in fact 94 related cases involving 300 plaintiffs representing nearly half the states, from Southern Baptists such as the Greens to Catholic nonprofits and Amish cabinetmakers. The objections to the ACA mandate are neither narrow nor sectarian.

Split decisions from the appellate courts all but guaranteed a Supreme Court hearing of the issue, which will begin tomorrow. The decision will be only incidentally about what kind of health insurance we have — it will be about what kind of country we have.

This is about that, and more.

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences…

The United States is one of the most religiously diverse nations on earth. People of a vast array of traditions of faith live here in a harmony that would have been unthinkable in most of the world for most of human history.

One of the ways America has fostered and protected this diversity is by nurturing a robust understanding of religious liberty that includes granting certain exemptions to people who need them in order to be true to their religious faith. Religious exemptions protect people in situations where legislative or executive acts might otherwise unnecessarily force them to violate their consciences.

In a free, representative republic, it’s hard to imagine why or how government acts would possibly force citizens to violate their consciences. Surely, that cannot stand.

The reason that government is likely to lose in the Hobby Lobby case, however, is that there are so many ways for the government to distribute these drugs—on its own exchanges, through the Title X family-planning program and by cooperating with willing distributors—that do not require the forced participation of conscientious objectors. That presumably is why an effort is now being made to cut back on the robust conception of religious freedom that once united Americans of all faiths and even unbelievers.

The Establishment Clause argument should also fail. That provision exists to prevent the establishment of a national religion or the granting of superior standing to a religion that happens to have the support of most citizens. It would be perverse for a court to use it to punish the laudable practice—dating all the way back to George Washington’s decision to excuse Quakers from his army—of accommodating the free exercise of religion by protecting people whose religious beliefs or practices are not shared by the majority from being compelled even in the absence of a compelling reason to violate their consciences.

The two-pronged test of proving a compelling government interest in pursuing an edict that requires citizens to violate their religious beliefs, and then proving that the means of doing so constitute the least restrictive means possible to do so, is a test the government cannot pass with the HHS mandate, without the help of an activist court.

Oral arguments begin. The court ruling will come later. Stay tuned.