Obamacare and Contraception Exceptions

How mandatory birth control coverage violates religious liberty.

For many Americans, religion is something you do on weekends and holidays. For others, it is the central organizing principle of life. That split helps explain the dispute over Obamacare's requirement that businesses pay for their employees' contraceptives, which is the focus of two cases the Supreme Court agreed to hear last week.

President Obama says forcing employers to provide 100 percent coverage for 20 kinds of contraception is a straightforward matter of "public health and gender equality." He nevertheless recognizes that the rule runs afoul of certain religious doctrines, which is why he exempted churches and offered to accommodate church-affiliated organizations such as hospitals and universities by routing contraceptive coverage through a middleman.

But the idea that a profit-making enterprise could raise an equally valid religious objection to the mandate seems beyond the president's ken. After all, business is business, and religion is religion.

That is not how David and Barbara Green see it. The Greens, who together with their three children own the Oklahoma-based craft store chain Hobby Lobby, are dedicated to "honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles."

Norman and Elizabeth Hahn, Mennonites who together with their three sons own Conestoga Wood Specialties, a Pennsylvania cabinet manufacturer, likewise do not leave their religious scruples at the threshold of their business. Conestoga declares, for example, that "human life begins at conception," adding that "it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the taking of human life."

Both the Greens and the Hahns believe certain forms of contraception (IUDs and pills taken after intercourse) fall into that category because they can prevent implantation of a fertilized ovum. They therefore believe that forcing them to pay for those contraceptives makes them complicit in the taking of human life.

Such a requirement, the Greens and the Hahns argue, violates the Religious Freedom Restoration Act (RFRA), which says "government may substantially burden a person’s exercise of religion" only if it is "the least restrictive means" of serving a "compelling governmental interest." Congress passed RFRA almost unanimously in response to a 1990 Supreme Court decision that loosened the restraints on laws that limit religious freedom.

Last June the U.S. Court of Appeals for the 10th Circuit ruled that the contraceptive mandate probably fails RFRA's test, opening the way to a preliminary injunction barring the government from enforcing the rule against the Greens. A month later the U.S. Court of Appeals for the 3rd Circuit rejected the Hahns' RFRA claim, declaring that "a for-profit, secular corporation cannot engage in the exercise of religion."

Money changes everything, I guess. As the 10th Circuit pointed out, it is well established that nonprofit corporations such as churches can "engage in the exercise of religion." The Obama administration conceded as much when it exempted houses of worship from the contraceptive mandate.

Furthermore, the Supreme Court has heard religious freedom claims by Jewish merchants who challenged a Sunday closing law and by an Amish employer who objected to paying Social Security taxes. If people do not lose their religious liberty when they create nonprofit corporations or when they start businesses, why should they sacrifice this right when they combine the corporate form with a monetary motive?

The Supreme Court has repeatedly held that for-profit corporations (such as the New York Times Company) are protected by the First Amendment, recognizing that such organizations are one way individuals exercise their rights to freedom of speech and freedom of the press. The same is true of religious freedom.

To insist otherwise requires a kind of compartmentalization that is anathema to people whose faith infuses the way they do business. "Since Conestoga is distinct from the Hahns," the 3rd Circuit averred, "the Mandate does not actually require the Hahns to do anything." Maybe the court could explain that to God.

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  • cavalier973||

    I object, on religious grounds, to people making thousands of dollars from home in only a few hours a day.


    /popefrancis

  • Heroic Mulatto||

    I object, on religious grounds, to people making thousands of dollars from home in only a few hours a day.

    Well, considering the only way to do that is home-based prostitution, I kinda see where Francis is coming from, religiously....

  • Rich||

    Now, now, HM -- I understand stuffing envelopes can be quite lucrative.

  • steve8229||

    Google is paying 75$/hour! Just work for few hours & spend more time with friends and family. On Sunday I bought themselves a Alfa Romeo from having made $5637 this month. its the best-job Ive ever had.It sounds unbelievable but you wont forgive yourself if you don’t check it out www.Buzz95.com

  • Ted S.||

    Why don't you donate that money to the fucking webathon and get it over with early?

  • Fist of Etiquette||

    President Obama says forcing employers to provide 100 percent coverage for 20 kinds of contraception is a straightforward matter of "public health and gender equality."

    Freedom of religion is guaranteed by the First Amendment. So that's already covered. But since the right to free contraception was some crazy how overlooked by the framers of the Constitution (i.e. WHITE MEN) Obama has recognized that that omission must be corrected by Obamacare.

  • sarcasmic||

    It's better than naming yourself after a piece of shit tangled in pubic hair.

  • Smilin' Joe Fission||

    I hate you.

  • Ted S.||

    Get in line. ;-)

  • Neoliberal Kochtopus||

    Oh hi Kizone / Mary.

    I wish you would make more videos :(

  • Neoliberal Kochtopus||

    Straight up yes or no response: do you use the name Kizone Kaprow on YouTube?

  • Neoliberal Kochtopus||

    you're full of shit.

  • ||

    Kizone Kaprow, this sounds like it is a Mellow Mushroom menu item.

  • sarcasmic||

    Oh my, you're beyond stupid. Start typing "sarcasm is the lowest" into google and see what the auto-complete gives you. It's not "form of rhetoric." Fucking shit you're dumb.

  • Restoras||

    I dunno about rhetoric and other smart people talk since I am just a dumb SoCon but I have found sarcasm to be one of the highest forms of humor.

  • sarcasmic||

    I've always thought Oscar Wilde was a worthless Bitter Klingon.

  • sarcasmic||

    Says the guy who can't even quote him right. What a buffoon.

  • Pelosi's Rabbit||

    I dunno about rhetoric and other smart people talk since I am just a dumb SoCon but I have found sarcasm to be one of the highest forms of humor.

    Oh sure, sarcasm is so great.

  • Fist of Etiquette||

    Sarcasm. Yeah, that's real useful.

  • ||

    Mary's off her meds.

  • Lord Humungus||

    It's the Cliff Note version of Shreek.

  • Heroic Mulatto||

    But since the right to free contraception was some crazy how overlooked by the framers of the Constitution

    No. It wasn't. The right of the facial money shot was already established as a universal human right in the Declaration of Independence,it's just that most people nowadays don't understand what that olde-tyme idiom "Pursuit of Happiness" actually means.

  • ||

    The bukkake ammendment is more than 100 years old and written in complicated language.

  • cavalier973||

    Maybe the court could explain that to God.

    Ha. Ha. Everybody knows that science has proved there is no God.

    What these cretins want to do is force their religion on their employees, who have no alternative to working for Hobby Lobby. Also, the ACA is a validly passed law. Why should people be able to flaut the law because they believe in an invisible sky daddy?

    Also, what if the owners of Hobby Lobby decide that tobacco and alcohol are against the bible, and so refuse to cover health care costs resulting from use of those substances? This would be intolerable. If the owners of Hobby Lobby want to practice their religion, they can do it on their own time, but as a corporation (which gets special priveleges from the government, and tax breaks that individuals don't get), they are a public accomodation, and must follow the rules like everyone else.

    Amirite?

  • Eduard van Haalen||

    You should make reference to jehovah's Witnesses and blood transgusions, otherwise you have the makings of a Salon article.

  • cavalier973||

  • wareagle||

    Please explain how science "proved" your claim. It didn't, any more than anyone has proven god is real. That's why it is called faith.

    And go fuck yourself and your desire to force your belief system on everyone else. If I don't like how HL does things, I don't have to work there. That option does not exist where govt dictates are concerned.

  • Ted S.||

    This might help.

  • Rich||

    If I don't like how HL does things, I don't have to work there.

    *** rising intonation ***

    What if the Lord calls you to work there anyway?

  • Eduard van Haalen||

    I think he's being sarcastic.

  • ||

    Someone needs to turn in their old sarcastometer.

  • cavalier973||

    Crud, I forgot to put the /sarc tag. Now I made someone have a sad.

    Now *I* have a sad.

  • cavalier973||

    /sarc

  • Heroic Mulatto||

    Also, what if the owners of Hobby Lobby decide that tobacco and alcohol are against the bible, and so refuse to cover health care costs resulting from use of those substances?

    I think that policy is only for their Utah branches.

    Jus' sayin'

  • Loki||

    Sad thing is you could find pretty much that same argument posted without any intent at sarcasm* on HuffPo or Gawker. Although if you really want to echo those guys you need a few more smug, condescending cheapshots at religious believers. I mean, you managed to work in a reference to "an invisible sky daddy" but it's just not quite enough. IOW, needz moar CHRISTFAG.

    *I'm assuming you're being sarcastic, but it really is kind of hard to tell.

  • cavalier973||

    There was an article on DailyBeast that pretty much argued the same nonsense I posted above.

    I was flabbergasted. Seriously, I was so astonished by the stupid that I could not formulate a response any more enlightening than:
    "This is the best bit of trolling I've seen in a while, and I salute you for it" (or something to that effect.

    For wareagle above, if you click on my handle, you can read my blog and see where I'm coming from.

  • OldMexican||

    Re: Cavalier973,

    What these cretins want to do is force their religion on their employees,


    Are you saying that not wanting to pay for the contraceptives of your employees the same as "forcing religion" upon them? Is that your argument?

    [...] who have no alternative [??????] to working for Hobby Lobby.


    Yeah. They were all born into chattel inside Hobby Lobby, a real-life Plato's cave.

    Idiot.

  • OldMexican||

    Oh, by the way, I did read that you were paraphrasing the Daily Beast, so I am answering to that and not you directly.

  • Mickey Rat||

    "...which is why he exempted churches and offered to accommodate church-affiliated organizations such as hospitals and universities by routing contraceptive coverage through a middleman."

    Which is not an accommodation at all, it is moral money laundering. It is asking the church affiliated concerns to engage in self-deceit to cover up the hubris of the government's micromanagement of health insurance as compensation.

  • Game of Gnomes||

    I am not sure church affiliated universities even understand or trust that they are exempt. I interviewed for a PA program at a Catholic university. The program director said the school would not offer insurance due to the contraception mandate.

    On the plus side the program director really hates Obamacare and made that well known (not due to the contraception mandate, but everything else).

  • Bill Dalasio||

    Well, considering the fact that the entire Sandra Fluke thing was at Georgetown, I'd say you should probably replace "I'm not sure they understand or trust" with "know perfectly well that they aren't".

  • Copernicus||

    "That split helps explain the dispute over Obamacare's requirement that businesses pay for their employees' contraceptives, which is the focus of two cases the Supreme Court agreed to hear last week."

    That might be the dispute in this case, but the proper dispute regarding Obamacare needs to be clearly stated:

    Fuck you Slaver vs. Fuck you that's why

  • Rich||

    Fuck you Slaver vs. Fuck you that's why

    "Political tags - such as royalist, communist, democrat, populist, fascist, liberal, conservative, and so forth - are never basic criteria. The human race divides politically into those who want people to be controlled and those who have no such desire." -- Robert A. Heinlein

  • DJF||

    Still don't understand why contraception is suppose to be covered by insurance? Its a running expense not a emergency.

    Is my car insurance suppose to cover gas, oil changes and new tires?

  • EDG reppin' LBC||

    I think contraception is a blanket term. What the ACA really wants to make sure is covered is abortion. Abortion, the pill, rubbers, IUD's, diaphragms all fall under the category "contraception".

  • Zeb||

    Really is there any insurance that covers elective abortion now?
    I'm all for legal abortion, but if you want to keep it as your failsafe option, how hard is it to keep $500 set aside for emergencies?

  • JWatts||

    What the ACA really wants to make sure is covered is abortion.

    I'm pretty sure the whole Sandra Fluke (rising star in the Feminist movement) issue was over birth control.

    From Wiki:
    "She first came to public attention when, in February 2012, Republican congressmen refused to allow her to testify to the House Oversight and Government Reform Committee on the importance of requiring insurance plans to cover birth control during a discussion on whether medical insurance should have a contraception mandate. She later spoke to only House Democratic members."

  • Michael Ejercito||

    The argument goes is that it is cheaper for auto insurance to pay for routine repairs rather than claims arising from collisions due to worn-out cars failing on the road.

  • Bill Dalasio||

    Still don't understand why contraception is suppose to be covered by insurance?

    Because the feminists want to stick everybody else with their bills, since they're all such strong independent women.

  • DaBungla||

    I don't get one underlying issue which was not discussed in this article - why should birth control be covered by health insurance in the first place? Choosing to have sex and choosing to avoid pregnancy by using birth control is a known expense that can be projected into the future. Isn't insurance intended to mitigate the risk of unknown future medical expenses? Why can't people just take money from their paycheck (whether from a religious employer or a secular one) and budget for the expense of purchasing birth control? Or is that just too simple...?

  • Night Elf Mohawk||

    Haven't you heard? If it only mitigates the risk of catastrophic expenses, it isn't really insurance.

    It's much better to pay more, every month, for something you probably rarely use so that when you do, you can pay a $20 co-pay instead of $75 cash for a doctor visit.

  • Ted S.||

    And if you want the choice to have lower premiums now and pay the full $75 instead of the $20 co-pay, then you really want to take away that "something you probably rarely use" entirely.

    (That's the argument used wrt mammograms.)

  • JWatts||

    Actually, I pretty sure that under Obamacare, mammograms have to be provided for free.

  • wareagle||

    Why? Simple; it's about control. Govt, as usual, starts with the premise that people are too stupid or too lazy or too something to handle this expense on their own. Therefore, govt must step in to save them from themselves.

  • Heroic Mulatto||

    why should birth control be covered by health insurance in the first place?

    Well, the enlightened and totally-not-racist Progressives, bless their heart, earnestly believe that poor brown women can't close their legs, due to all that spicy Latin blood and sexually arousing Salsa music.

  • Zeb||

    And even if there is some reason to include it in insurance, why should it be treated differently from any other prescription? Surely high blood pressure medication or other things that people need to take everyday to stay healthy are far more essential.

  • Will Nonya||

    Because that wouldn't promote gender "equality"

  • eyeroller||

    "it is against our moral conviction to be involved in the termination of human life through abortion, suicide, euthanasia, murder, or any other acts that involve the taking of human life."

    But they have no problem paying taxes to the Pentagon. Hmm.

  • Night Elf Mohawk||

    Citation needed.

  • wareagle||

    did they say they have no problem with that? By the way, defense is an actual enumerated power of fedzilla; it's in the Constitution and everything. Birth control, not so much.

  • Zeb||

    But there is a good question in there. If freedom of religion allows people to refuse to pay for things directly that they have religious objections to, shouldn't freedom of religion exempt you from paying for things you religiously disapprove of through taxes as well?

  • Will Nonya||

    That argument will come in when we move to single payer and healthcare dues are collected directly as taxes.

  • OldMexican||

    Re: eyeroller,

    But they have no problem paying taxes to the Pentagon. Hmm.


    I don't think anybody pays taxes to the Pentagon. Everybody in this country pays taxes to the nicely-dressed man pointing a loaded gun at the taxpayer.

  • cavalier973||

    No, no...taxes are voluntary in this great democracy of ours.

  • Will Nonya||

    Non payment of taxes = application of government force resulting in loss of freedom, your business etc.

    Opposing subsidizing an employees behavior which you object to is a different issue entirely.

  • ThomasD||

    Catholic Just War Doctrine notwithstanding...

  • Eduard van Haalen||

    If the Supreme Court doesn't care about the law, atleast I hope it cares about politics. Roberts upheld theACA in the face of a legitimate Tenth Amendment challenge, thinkin upholding the law would make him a Judicial Statesman who showed Judicial Restraint and Transcended Ideology. Now the law is blowing up in the feds' faces, Roberts will feel like a sucker. Now maybe he'llntry to make partial reparation by at least upholding religious freedom against the ACA.

  • The Late P Brooks||

    Is my car insurance suppose to cover gas, oil changes and new tires?

    If it's real insurance, and not some crazy fake insurance.

  • Rich||

    Make sure you get the Platinum Plan if you want your catalytic converter covered.

  • Being Waterboarded||

    Catalytic converter - the appendix of the automobile.

  • Zeb||

    I'm generally opposed to required equipment on cars, but an argument could be made that excessive emissions of partially burned fuel does cause harm to others. People focus so much on CO2 that it is sometimes easy to forget that there is real pollution that actually injures people as well.

  • Being Waterboarded||

    Actually, I agree here. In high school there were several of us that removed our catalytic converters and much of the exhaust systems to make our vehicles as annoyingly loud as we could to tick off the local popo and populace. We always joked how cars didn't need that crap (hence my comment). However, I've been to India, where emission control is minimal - I could hardly breathe and felt like I was developing asthma. I think one can make a strong property rights argument for autos including some sort of emissions control.

  • Will Nonya||

    Next thing you know people wont be allowed to smoke in public...

  • The Late P Brooks||

    The messaging never ends.

    On Wednesday, the focus will be the ACA provision that requires insurers to provide preventive care without copays. Thursday’s emphasis will be on preexisting conditions, which can no longer result in higher premiums or denied coverage. Friday’s focus will be on the declining growth in health spending.

    Obama is also signaling that he’s not just about the health-reform law that colloquially bears his name. On Wednesday, he will deliver a speech on income inequality and the American dream at a Washington nonprofit – remarks that will tie in Obamacare.

    “The president will discuss the steps he has taken to help reverse these trends, restore mobility, and increase economic security for every American, including the economic benefits of the Affordable Care Act,” a White House official said in a statement. “He will also offer a robust argument for further steps, like raising the minimum wage, that we should take as a nation in the near future.”

    Raising the federal minimum wage is a long shot on Capitol Hill, but by bringing it up in his speech, Obama is signaling to liberals that he hears their message. The rise of the left, exemplified by Bill de Blasio’s election as mayor of New York, has added a new pressure point to Obama’s political calculations.

    "I will set you free."

  • wareagle||

    when everything seen as a messaging problem....

  • Will Nonya||

    Obviously it is. If you understood what was said you couldn't possible oppose it. :)

  • WTF||

    The rise of the left, exemplified by Bill de Blasio’s election as mayor of New York,

    I really don't think a leftist getting elected in a leftist city like NY really indicates any national resurgence of the left.

  • JWatts||

    It's all about the messaging.

  • The Late P Brooks||

    But in his Obamacare 2.0 speech on Wednesday, the president made clear he will spend the rest of his presidency putting the law solidly in place, if that’s what it takes.

    “If I’ve got to fight another three years to make sure this law works, then that’s what I’ll do,” Obama said. “That’s what we’ll do,” he added, deputizing those in the audience to be his foot soldiers.

    “If you’ve already got health insurance or you’ve already taken advantage of the Affordable Care Act, you’ve got to tell your friends, you’ve got to tell your family,” Obama said. “Tell your coworkers. Tell your neighbors.”

    Obama, too, will continue his ACA outreach effort with young adults. On Wednesday, he will help kick off the White House Youth Summit, a gathering of “160 national and local young leaders with a broad reach in their communities to help get the word out to young Americans about how to enroll,” according to a statement from a White House official.

    Best

    President

    EVER.

  • cavalier973||

    I'm hoping that the GOP Congress can keep him on this topic, so that he is unable to move on to all the other historic legislation he was thinking he would eventually get to.

  • Doctor Whom||

    I think I'll get a job at a kosher deli and then insist on my right to keep it open on Saturday and serve bacon cheeseburgers. As a profit-making corporation, the deli has no right to impose its religion on me.

  • Zeb||

    That's not quite a parallel situation as there is no law requiring Kosher Deli's to open on Saturday or serve cheese with meat.

  • Michael Ejercito||

    Of course, prior to the ACA, there was no law requiring employers to cover contraception...

  • Zeb||

    Obviously I don't think Hobby Lobby or anyone else should be required to provide any particular type of insurance or any insurance at all to their employees. But I am very wary of special exceptions for specific religious objections. If a law violates freedom of religion, then it violates everyone's freedom of religion and it should be eliminated entirely, not have special exceptions carved out. Otherwise, you have a situation where government determines what is or is not a valid religious belief, and that is even worse for freedom of religion.

  • sarcasmic||

    Otherwise, you have a situation where government determines what is or is not a valid religious belief, and that is even worse for freedom of religion.

    I believe that's the point.

  • reardensteel||

    That's exactly right.
    The ACA is tyranny and should be rejected by all Americans.

  • Will Nonya||

    When businesses no longer have the freedom to choose who they do business with, who they associate with, then why would they assume they have any religious freedoms? Obviously if they're in business they must be evil greedy capitalist...

  • Will Nonya||

    You cant let something as trivial as religion get in the way of gender equality...

    Free men are not equal. Equal men are not free.

  • Bill Dalasio||

    President Obama says forcing employers to provide 100 percent coverage for 20 kinds of contraception is a straightforward matter of "public health and gender equality."

    Gender equality? Really? Are they giving out free Trojans?

  • sidcon||

    If a law is just it needs no exemptions.

  • sidcon||

    And how in hell do the amish get exempt from every damn thing.Must be those fucking beards.

  • reardensteel||

    Why is everyone getting so spun up over the religious aspect of this?
    I mean, I agree fully with the article, but forcing an employer to pay for anything is not right regardless of religion.

    The employer decides what the recompense will be for the work provided.
    The employee decides whether that is acceptable.
    If not, he chooses not to take the position.

    The role of gov't is not to dictate what the terms of employment will be, but to ensure that the terms are met, i.e. if you performed the work, your employer pays you what was promised.

    When the gov't can tell us what we have to give/pay to others, there's no limit to what it can do.

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