Coming Home

Americans United for Life Just released this analysis in an email, and has given permission for its dissemination. Here is AUL on the Hobby Lobby decision today:

Today’s decision: The “contraceptive” mandate violates the Religious Freedom Restoration Act (RFRA) by requiring three closely held corporations to provide health insurance coverage for life-ending contraception in violation of the sincerely held religious beliefs of the companies’ owners. Assuming that the government has a “compelling interest” in the mandate (which the Court does not hold, but just assumes for purposes of this case), there are less restrictive means to accomplish their goal.

Breakdown:

Today’s decision applies to closely held corporations (e.g. the Green and Hahn family businesses). The Court strongly explains that these corporations are people:
· “Corporations, ‘separate and apart from’ the human beings who own, run, and are employed by them cannot do anything at all” (36)
· “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies.” (18)

It is based on the Court accepting as their sincere religious belief that these drugs and devices can destroy an embryo:
· “The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients. If the owners comply with the HHS mandate, they believe they will be facilitating abortions, and if they do not comply, they will pay a very heavy price . . . If these consequences do not amount to a substantial burden, it is hard to see what would.” (2)
· “Like the Hahns, the Greens believe that life begins at conception and that it would violate their religion to facilitate access to contraceptive drugs and devices that operate after that point” (14)
· “[T]he Hahns and Greens have a sincere religious belief that life begins at conception. They therefore object on religious grounds to providing health insurance that covers methods of birth control that, as HHS acknowledges [] may result in the destruction of an embryo. By requiring the Hahns and Greens and their companies to arrange for such coverage, the HHS mandate demands that they engage in conduct that seriously violates their religious beliefs.” (32)
· “the end that they find to be morally wrong (destruction of an embryo)…” (35)
· “HHS and the dissent note that providing the coverage itself would not result in the destruction of an embryo; that would occur only if an employee chose to take advantage of the coverage and to use one of the four methods at issue” (35)
· “The Hahns and Greens believe that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” (36)

The Court ruled the mandate failed the narrow-tailoring requirement of RFRA, pointing to the accommodation as a clearly less-restrictive means of accomplishing the Obama Administration’s stated goal. “HHS itself has demonstrated that it has at its disposal an approach that is less restrictive than requiring employers to fund contraceptive methods that violate their religious beliefs. . . . HHS has already established an accommodation for nonprofit organizations with religious objections.” (43)

The for-profit employers who object to all contraceptives (for example, many of the Catholic employers) should be protected by this ruling since the Mandate violates a sincere religious belief, even though it is not solely regarding the life-ending properties of some of these drugs and devices.
· The Court makes clear: “it is not for us to say that their religious beliefs are mistaken or insubstantial” (37) .
· And, most importantly, the Mandate (as applied to them) also clearly fails to be narrowly tailored means –e.g. non-profit Catholic employers are already “accommodated” with respect to all contraceptives.

The Court acknowledged the dangerous and radical view advanced by the Obama Administration: “Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people form full participation in the economic life of the Nation.” (45-46)

The decision does NOT decide the constitutionality/legality of the “accommodation.”
· “We do not decide today whether an approach of this type complies with RFRA for purposes of all religious claims.” (44)
· Footnote 40: “The principal dissent faults us for being ‘noncommital’ in refusing to decide a case that is not before us here. The less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.” (44)
· There is some troubling language. For example, there is this line on page 9 – “In addition, HHS has effectively exempted certain religious nonprofit organizations, described under HHS regulations as ‘eligible organizations,’ from the contraceptive mandate (emphasis added).”
o We do NOT think the “accommodation” is effectively an exemption – quite the opposite.
o Going forward the accommodation cases must emphasize that the “accommodation” still requires these companies to “arrange” for the coverage, given that they are providing the insurance plan.
· The Court does note that there could be another method (besides the “accommodation”) for achieving the government’s goal — namely, the government could provide the contraception coverage. That indicates that they could also find the accommodation fails to be narrowly tailored.
o “HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion . . . . The most straight forward way of doing this would be for the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” (40-41)

Importantly, the Court did NOT rule on whether or not the Obama Administration’s stated goal was a compelling interest.
· In order to impose a substantial burden, the government must have a “compelling interest”
· “We find it unnecessary to adjudicate this issue” (pg 40) since it was not narrowly-tailored.
· Acknowledging there are arguments against this being a compelling interest: “The objecting parties contend that HHS has not shown that the mandate serves a compelling government interest, and it is arguable that there are features of ACA that support that view.” (39)
· And the Court acknowledges that “tens of millions” (page 11) have been exempted from the Mandate for non-religious reasons (including grandfathering) – a fact that undermines the government’s claim that forcing this Mandate is compelling (i.e. if it was compelling, they wouldn’t make those millions of exemptions).

The accommodation – whether or not it satisfies RFRA and the Constitution— may be decided by the Court next term.

Since the effect of today’s ruling is that the Obama Administration cannot impose its Mandate on family businesses with sincere religious objections, which it has not exempted, we should be prepared for the Obama Administration to, very soon, extend its “accommodation” at least to closely-held corporations. Because the “accommodation” applies to objections to all contraceptives (not limited to those with life-ending properties), we would expect the Obama Administration to “accommodate” for-profit employers for all the drugs/devices as well. At that point, it will be for the Green and Hahn families, and other family businesses, to decide whether the accommodation violates their conscience and/or whether they pursue litigation over it.

Some other good language from the majority opinion:

· “If the Hahns and the Greens and their companies do not yield to this demand, the economic consequences will be severe.” But the Court also recognizes that the Green and Hahn families would not want to drop insurance coverage for their employees altogether, also because of their religious beliefs: “[T]he Hans and the Greens and their companies have religious reasons for providing health insurance to their employees.”

· Life-affirming healthcare severely punished by Mandate: “If they insist on providing insurance coverage in accordance with their religious beliefs, the mandate clearly imposes a substantial burden on those beliefs” (38)

· “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.” (2)

· “As we have seen, RFRA was designed to provide very broad protection for religious liberty.” (17)

· The dissent, points out the majority, disagrees with RFRA. It doesn’t like the law that broadly protects religious liberty. “In its final pages, the principal dissent reveals that its fundamental objection to the claims of the plaintiffs is an objection to RFRA itself.” (48)

· “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.” (49)