UPDATED WEDNESDAY, NOV. 27
WASHINGTON (BP) — The U.S. Supreme Court will decide if the federal government can enforce an abortion/contraception mandate against business owners who conscientiously object.
The justices announced Tuesday (Nov. 26) they would review lower court rulings in lawsuits against the Obama administration’s requirement that employers provide contraceptives, including abortion-causing drugs, for their workers. The high court consolidated two cases and will hear oral arguments next year but not before March. A decision is expected by the time the court adjourns next summer.
The cases involve split opinions in two appeals court circuits: The 10th Circuit Court of Appeals in Denver ruled in favor of the religious freedom rights of Hobby Lobby and its sister corporation Mardel, Oklahoma City-based retail chains owned by the pro-life evangelical Christian Green family, while the Third Circuit in Philadelphia decided against Conestoga Wood Specialties, a Pennsylvania business owned by pro-life Mennonites.
The Southern Baptist Ethics & Religious Liberty Commission, which joined a friend-of-the-court brief urging the Supreme Court to review the appeals court decisions and rule in favor of the business owners, applauded the justices’ announcement.
“The Supreme Court’s consideration of the [cases] is the most important religious liberty question in recent years,” ERLC President Russell D. Moore said in a written statement. “What’s at stake in this case is whether or not the Constitution guarantees the free exercise of religion.
“We cannot accept the theology lesson that the government has sought to teach us, that religion is merely a matter of what happens during the scheduled times of our services and is left there in the foyer during the rest of the week. Our religious convictions aren’t reduced to mere opinions we hide in our heart and in our hymns. Our religious convictions inform the way we live.
“I pray the Supreme Court recognizes what the founders of this country saw, that religious liberty isn’t a gift handed to us by Uncle Caesar,” Moore said. “Religious liberty is given to us by God and is inalienable.”
Hobby Lobby founder David Green welcomed the news.
“This legal challenge has always remained about one thing and one thing only: the right of our family businesses to live out our sincere and deeply held religious convictions as guaranteed by the law and the Constitution,” Green said in a written release. “Business owners should not have to choose between violating their faith and violating the law.”
A major question the Supreme Court will consider is whether owners of for-profit companies can exercise their religion in the conduct of their businesses.
In its July ruling against Conestoga Wood, a divided three-judge panel of the Third Circuit said for-profit secular organizations “cannot engage in religious exercise.” A month earlier, however, the 10th Circuit rejected the Obama administration’s argument that protections under the 1993 Religious Freedom Restoration Act do not extend to for-profit companies. The 10th Circuit ruled corporations such as Hobby Lobby and Mardel “can be ‘persons’ exercising religion for purposes” of RFRA.
The Department of Health and Human Services (HHS) issued the abortion/contraception mandate on behalf of the Obama administration as part of implementing the Affordable Care Act, the 2010 health care reform law. In addition to contraceptives, the mandate requires coverage of such drugs as Plan B and other “morning-after” pills that possess a post-fertilization mechanism that can cause an abortion by preventing implantation of tiny embryos. The rule also covers “ella,” which — in a fashion similar to the abortion drug RU 486 — can even act after implantation to end the life of the child.
HHS provided an exemption to the rule for churches and their auxiliaries but did not extend it to non-church-related, non-profit organizations and for-profit companies that object. Some conscientious objectors oppose underwriting all contraceptives, while some — such as Hobby Lobby — protest paying only for abortion-causing drugs. The administration also offered an accommodation for non-church-related religious organizations, but critics said it was inadequate because it still forces such groups to provide access to the drugs through third parties.
White House Press Secretary Jay Carney said the administration believes the mandate “is lawful and essential to women’s health and [is] confident the Supreme Court will agree.”
In a written statement, Carney said the rule “is designed to ensure that health care decisions are made between a woman and her doctor. The President believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”
David Cortman, senior counsel for Alliance Defending Freedom (ADF), said, however, the Obama administration “has no business forcing citizens to choose between making a living and living free.”
“We trust the Supreme Court will agree,” Cortman said in a written release. ADF represents Conestoga Wood. “A government that forces any citizen to participate in immoral acts — like the use of abortion drugs — under threat of crippling fines is a government everyone should fear.”
Abortion rights advocates called for the high court to uphold the mandate.” (B)osses have no business imposing their own politics on their employees’ health and decisions,” Ilyse Hogue, president of NARAL Pro-choice America, said in a statement.
For-profit and non-profit corporations have filed a total of 84 lawsuits against the mandate, according to the Becket Fund for Religious Liberty, which represents Hobby Lobby. GuideStone Financial Resources, the Southern Baptist Convention’s health and financial benefits entity, combined with two of its health plan participants to file one of the suits in October.
The Department of Justice urged the Supreme Court to review the 10th Circuit ruling in the Hobby Lobby case. In an unconventional move, Hobby Lobby agreed the justices should hear the case, even though it won in the appeals court.
Hobby Lobby, a national arts and crafts retail chain, has said it will not comply with the mandate. If it ultimately loses in court, the chain of nearly 580 stores could face fines totaling $1.3 million a day. Mardell is a Christian bookstore chain.
Hobby Lobby seeks to honor God “by operating the company in a manner consistent with Biblical principles,” according to its statement of purpose. Its stores are closed on Sundays.
The Hahn family, which owns Conestoga Wood Specialties, has been living under the mandate since its group health plan was renewed in January. Refusal to abide by the mandate could cost the family an estimated $95,000 a day. Conestoga Wood is a wholesale manufacturer of kitchen cabinet parts.
The 10th Circuit case is Sebelius v. Hobby Lobby, while the Third Circuit case is Conestoga Wood v. Sebelius. Kathleen Sebelius is the HHS secretary.
Tom Strode is the Washington bureau chief for Baptist Press. Get Baptist Press headlines and breaking news on Twitter (@BaptistPress), Facebook (Facebook.com/BaptistPress) and in your email (baptistpress.com/SubscribeBP.asp).