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Conscience at the court

Supreme Court | Opponents of Obamacare’s contraceptive mandate have a good day before the Supreme Court in their effort to avoid supporting abortion

Issue: "What price conscience?," April 19, 2014

WASHINGTON—The Green family, owners of craft retailer Hobby Lobby, and the Hahn family, owners of cabinet maker Conestoga Wood Specialties, have a common cause but are very different. The Greens are evangelical and public with their faith while the Hahns are Mennonite and private. Even before Hobby Lobby founder David Green found himself in the middle of a national debate on religious liberty, he had sat for many interviews about his faith and his built-from-scratch business. The Hahns, though, hadn’t spoken publicly about their similar situation aside from written statements.

After the Obama administration decreed that businesses must provide contraceptive coverage to employees under Obamacare, the Greens won an injunction at the 10th U.S. Circuit Court of Appeals and announced they would not comply with the mandate with regard to abortion-causing drugs even if they lose at the Supreme Court and thus face $475 million in fines. The Hahns, denied an injunction by the 3rd U.S. Circuit Court of Appeals, complied with the mandate, under protest.

On March 25, the Greens and the Hahns were at the Supreme Court to hear their case, Sebelius v. Hobby Lobby, argued before the nine justices. They sat among an audience of 157 lawyers and members of the public who watched silently and attentively, the court’s security guards having confiscated their digital devices. One hundred and five reporters sat shoulder to shoulder in the press wing of the courtroom, scribbling notes. Outside, unseasonal snowflakes fell thick and heavy.

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Both Hobby Lobby and Conestoga already cover contraceptives in their employee health plans, but both object to covering the federally mandated Plan B and Ella pills on the grounds that they can abort new embryos. For the first time, the Supreme Court will decide whether for-profit corporations, like nonprofit corporations, can challenge a government mandate on religious grounds, specifically under the Religious Freedom Restoration Act (RFRA).

The stakes are high. Thirty-seven other cases from for-profits challenging the mandate are currently in lower courts. But this case concerns every religious employer, not only those who object to abortifacients. Can a for-profit religious hospital have protections like a nonprofit religious hospital? Could for-profit employers object on religious grounds if the federal government one day mandated surgical abortions? Could Muslims running a halal slaughterhouse object to a law on religious grounds? Justice Samuel Alito, citing a new Danish animal welfare law that outlawed kosher and halal slaughterhouse practices, implied that a ruling against Hobby Lobby and Conestoga would set American legal precedents on a European trajectory, where religious expression and practice is increasingly forbidden from public life.

Anthony Hahn, CEO of Conestoga, declined an interview with me on the court steps but later agreed to an email interview. I asked Hahn to explain why his family decided to file a lawsuit when Mennonites typically avoid litigation. “Mennonites,” he replied, “do not live a life of retaliation.” He cited biblical commands to pray for those in authority in order to live a quiet and peaceable life but also the Bible’s commands to obey God rather than man: “The Obamacare mandate, as the government admits, includes products which take human life at its earliest stage. This is in direct conflict with God’s teachings in the Bible where we are instructed not to kill.”

The mandate, he says, left him no choice but to go to court: “This is not a suit of retaliation to get money, but a suit to keep from being forced to do something that is against our beliefs and against the teachings of the Bible.”

Both families filed their cases about 18 months ago: Most cases that ascend to the Supreme Court take longer. The lawyers who handled the suits in lower courts on both sides of the cases relinquished the arguing privileges to the Supreme Court specialists. Paul Clement, former solicitor general, in his 73rd oral argument before the Supreme Court, jousted on behalf of Hobby Lobby and Conestoga; current Solicitor General Donald Verrilli Jr. argued on behalf of the government. Verrilli and Clement famously faced off in the Supreme Court case challenging the core of Obamacare in 2012. That time the arguments went well for Clement and badly for the unusually unglued Verrilli, but Clement lost anyway. Verrilli did fine this time, but Clement still got the better of him in the arguments. 

At the core of the arguments was whether the contraceptive mandate as applied to businesses passed RFRA’s “test.” RFRA gives courts a test to decide whether the government is imposing a “substantial burden” on a person’s religious practice. If the government is imposing a burden, then it must demonstrate a “compelling interest,” and it must use the “least restrictive means” of burdening religious practice. The Supreme Court justices seemed almost to take for granted that the two corporations could qualify as “persons” who fell under RFRA. 

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