Supreme Court review of HHS mandate likely

By Tom Strode
Sep 23, 2013

The Obama administration’s controversial abortion/contraception mandate has moved a step closer to Supreme Court scrutiny.

Both the Department of Justice (DOJ) and Conestoga Wood Specialties, a business owned by pro-life Christians, asked the high court Sept. 19 to review separate lower court decisions regarding a rule issued to implement the 2010 health care reform law. The regulation from the Department of Health and Human Services (HHS) requires employers to pay for coverage of workers’ contraceptives, including medications that can cause abortions.

The mandate, as well as the administration’s failure to provide adequate conscience protections for pro-life institutions and businesses, has resulted in 71 federal lawsuits.

DOJ filed a petition urging the justices to review an appeals court ruling that favored the arts and crafts chain Hobby Lobby, which is owned by evangelical Christians who object to the mandate. On the same day, Conestoga Wood Specialties, a Pennsylvania company owned by a Mennonite family that opposes the rule, petitioned the high court to accept a case it lost in another federal appeals court.

If the Supreme Court grants review in either or both cases, it is likely to hear oral arguments early in 2014 and render a decision on the abortion/contraception mandate before it ends its term in late June or early July.

Drugs covered by the mandate include 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.

In both cases, the business owners are pro-life and object to providing funds for drugs that can cause abortions. They contend the mandate violates their religious freedom rights. The owners in both cases argue religious liberty protections extend to corporations established for profit.

The 10th Circuit Court of Appeals in Denver agreed in June with Hobby Lobby that the 1993 Religious Freedom Restoration Act (RFRA) applies to businesses established for profit, but the Third Circuit Court in Philadelphia rejected in July Conestoga’s RFRA argument, saying “for-profit, secular organizations cannot engage in religious exercise.” On Sept. 17, the Sixth Circuit Court in Cincinnati also spurned the religious freedom arguments of another firm, Autocam.

Supreme Court review is more likely, given the division among the appeals court circuits.

The Southern Baptist Ethics & Religious Liberty Commission has filed friend-of-the-court briefs defending the businesses’ religious freedom in both cases. The Christian Legal Society wrote both briefs.

A lawyer for Hobby Lobby charged the Obama administration with “taking the remarkable position that private individuals lose their religious freedom when they make a living.”

“We’re confident that the Supreme Court will reject the government’s extreme position and hold that religious liberty is for everyone — including people who run a business,” said Kyle Duncan, general counsel with the Becket Fund for Religious Liberty, which represents Hobby Lobby.

Members of the Green family, which owns Hobby Lobby, challenged the abortion/contraception mandate based on their belief life begins at conception. The suit involves both Hobby Lobby, which has more than 550 stores in the United States, and Mardel, a sister Christian bookstore chain. Protected for now by a preliminary injunction, the Greens have said they will not comply with the mandate, even as their refusal could cost them $1.3 million a day in penalties.

The Hahns, who own Conestoga Wood Specialties and also believe life begins at conception, have been living under the mandate since its group health plan was renewed in January.

“The question is whether the government can pick and choose what faith is, who the faithful are, and when and where they can exercise that faith,” said Matt Bowman, senior legal counsel for Alliance Defending Freedom, which represents Conestoga.

The ERLC and the U.S. Conference of Catholic Bishops lead a coalition of diverse religious organizations that have urged the Obama administration to protect freedom of conscience under the mandate.

HHS issued a final rule on the mandate June 28, but its foes found it inadequate. The rule did not provide a religious liberty accommodation to for-profit companies such as Hobby Lobby and Conestoga, and religious freedom advocates said it failed to remedy the conscience problems for objecting non-profit organizations, such as evangelical and Roman Catholic universities.

The 10th Circuit case is Hobby Lobby v. Sebelius, while the Third Circuit case is Conestoga Wood Specialties v. Sebelius. Kathleen Sebelius is the HHS secretary.

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