SCOTUS Will Hear Religious Challenges to Obamacare's Contraceptive Mandate

Today the Supreme Court agreed to hear two cases that challenge Obamacare's contraceptive mandate as a violation of religious freedom. Last year the Court upheld the requirement that individuals obtain government-approved medical coverage by treating it as an exercise of the tax power. This will be the Court's second opportunity to assess the legality of the Patient Protection and Affordable Care Act.

In one of the cases the court plans to hear, Sebelius v. Hobby Lobby Stores, David and Barbara Green, who own the Oklahoma-based chain together with their three children, argue that forcing them to provide their employees with health plans that cover certain forms of contraception violates the Religious Freedom Restoration Act (RFRA). The Greens specifically object to four kinds of contraception—Ella, Plan B, and two IUDs—that work by preventing implantation of fertilized ova, which they view as morally equivalent to abortion. 

RFRA, which Congress passed almost unanimously in response to a 1990 Supreme Court decision that loosened the restraints on laws that limit religious freedom, says "government shall not substantially burden a person's exercise of religion" unless the burden is "narrowly tailored" to serve a "compelling" interest. Last June the U.S. Court of Appeals for the 10th Circuit ruled that the contraceptive mandate probably fails this test, especially since it already exempts as many as 100 million health plans, including those offered by churches and other nonprofit religious organizations. The court also noted that the Greens have no religious objection to 16 of the 20 contraceptives covered by the mandate.

The other challenge to the contraceptive rule, Conestoga Wood Specialties v. Sebelius, involves a Pennsylvania cabinet company owned by the Hahns, a Mennonite family. The Hahns, like the Greens, object to contraceptives that prevent implantation rather than fertilization. But in July the U.S. Court of Appeals for the 3rd Circuit rejected their RFRA claim, concluding that their business is not covered by the statute because it is a for-profit corporation and therefore does not qualify as a "person." The Court held that "a for-profit, secular corporation cannot engage in the exercise of religion."

The 10th Circuit rejected this distinction. "It is beyond question that associations—not just individuals—have Free Exercise rights," it said, quoting a 1984 Supreme Court decision: "An individual's freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends [was] also guaranteed." If people do not lose their religious freedom when they exercise it through nonprofit corporations (such as churches) or for-profit businesses that are not incorporated, the 10th Circuit asked, why should they sacrifice this right when they combine the corporate form with a profit motive? For example, "Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?" The 10th Circuit noted that the Supreme Court, in the 2010 case Citizens United v. FEC, overturned restrictions on political speech by both commercial and nonprofit corporations, recognizing them as tools that individuals use to exercise their First Amendment rights. 

In a 2007 Reason article, I explored RFRA's implications for religious rituals involving prohibited drugs.

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  • Bo Cara Esq.||

    On the one hand it is hard to see how a corporation has religious beliefs that could be burdened by laws (the entire point of a corporation is to create an entity which is legally separate from its shareholders, so you can not simply say it has the beliefs of its holders), on the other hand such a ruling would mean that incorporated churches do not exercise religion, and that certainly seems wrong.

  • ||

    Attempting to unravel this moral and legal spaghetti plate is unnecessary. The entire steaming mess is built upon the premise that the federal government is somehow empowered to mandate that people engage in certain financial transactions; a legal abomination.

  • ||

    I should have added - John Roberts, rot in hell.

  • ||

    Indeed.

  • Swiss Servator, referendiffic!||

    I'd rather his pseudo-Constitutional opinions be undone.

  • ||

    I dunno. Given how badly ObamaCare is going , he might be an evil genius.

    "It's not our job to protect people from the consequences of their political choices."

    Famous words, that.

    In other news, apparanently twice as many people thing ObamaCare has hurt them compared to those who think it has helped them.

    http://www.politico.com/story/.....html?hp=l1

  • Zeb||

    Yeah. I think it is a mistake to make this about religious freedom specifically. It is an affront to freedom generally, and to any semblance of constitutional order, and that is why it is wrong.

  • John||

    Freedom of religion is specifically enumerated in the Constitution. As is freedom of association. For that reason, they really do warrant special protection. People certainly have a right to commerce. But the nature of that right has always been restricted. States had blue laws and all kinds of things rules about commerce at the time of the drafting of the Constitution.

  • Bo Cara Esq.||

    John, freedom of association is not specifically enumerated in the Constitution.

  • John||

    Yes it is. It is a little thing we like to call the 1st Amendment

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.[1

  • Bo Cara Esq.||

    Right to peaceably assemble is not right of association.

  • Bo Cara Esq.||

    as·sem·ble /əˈsembəl/

    verb

    verb: assemble; 3rd person present: assembles; past tense: assembled; past participle: assembled; gerund or present participle: assembling

    1. (of people) gather together in one place for a common purpose.

    as·so·ci·ate verb \ə-ˈsō-shē-ˌāt, -sē-\
    transitive verb

    1 to join as a partner, friend, or companion

  • John||

    That means you can assemble with who you like and thus have a right of free association. I don't write the court cases, I just read them.

  • ||

    I did not mean to say that this is not a fight worth fighting, it is. Only that it should have never come about in the first place as obamacare is an egregious violation of the freedom of association, unconstitutional on its face.

    Going from 'regulate commerce..among the several states' to 'regulate commerce' to 'coercing commerce' is taking a clear restriction on congress's power and turning it into unlimited power, and bound to create all kinds of injustices. I have no doubt that health insurance is not the only thing they want to force us to buy, and that this particular injustice will just be the tip of the iceberg.

  • Bo Cara Esq.||

    I agree there.

  • John||

    So the Boy Scouts or the Knights of Columbus can't have religious views? A corporation is just that, a corporation of individual people. The corporation has whatever rights the owners' have. If I can personally start an business that adheres to the values of a religion and can't be compelled by the government to act against my conscience then me and seven friends can form a corporation with the same rights.

    If you say "corporations" don't have rights, you are saying that when I avail myself of the protection of the corporate veil, I give up my 1st Amendment right to freedom of religion. Sure you can run your business however you want. But understand that when you do that, you are going to have to run it as part of your household and if it goes broke you will lose everything you own.

    You really think that is consistent with the 1st Amendment?

  • Almanian!||

    Yep = what John said, too

  • albo||

    If you have free religious expression rights as an individual, you have free religious expression rights when you are a group of individuals organized as a corporation.

  • Brett L||

    Well, the government tried to say that the profit motive invalidates it. Although, it would seem that under the kosher rules, a company claiming that they needed to only employ men or persons who have a "Y" chromosome and identify male because of religious beliefs should invalidate ENDA.

  • John||

    And that is complete bullshit. That is saying that you can act by your conscience, provided you don't try to make a living. It is a view of religious freedom that restricts religion to our heads and a few designated churches and nothing else.

    It is like saying, you have a right to your political views, but you can't put a sign up for your favorite candidate in your business.

  • Brett L||

    You and I agree. But part of the mythos that the Marxist-offshoot progressive ideology is that capital and labor are not interchangeable and capital is evil. I am glad to see such a ringing rejection of this false idea.

  • Bo Cara Esq.||

    Yes, consider the religious idea of one's work as a calling.

  • Bo Cara Esq.||

    -If you say "corporations" don't have rights, you are saying that when I avail myself of the protection of the corporate veil, I give up my 1st Amendment right to freedom of religion.

    I think the response to that is you have your freedom of religion rights but the corporation is a separate entity.

  • John||

    And that is called begging the question. Of course it is a separate entity. And when you say my new entity doesn't have the same rights as I do, you are saying I can only do business by my conscience if I am willing to not avail myself of the corporate veil.

  • Bo Cara Esq.||

    You do not think it is odd to talk about a corporation 'exercising' religion or having 'religious' beliefs? I understand the shareholders having them. I can understand the organization's purpose being a religious one. But the corporation itself having sincerely held religious beliefs?

  • John||

    There is nothing odd about it. The corporation is just an extension of its owners.

  • Seamus||

    I know this has been explained many times already, but I'll try one more time: When we "talk about a corporation 'exercising' religion or having 'religious' beliefs," we're using shorthand for what may more accurately be described as the owners of a corporation exercising their religious freedom and beliefs through the corporate form, in the same way that they could if they were doing business in the form of sole proprietorships or partnerships (or are you also of the mind that a partnership can't exercise religion, either?).

  • Almanian!||

    If I set up my LLC or whatever as abiding by XYZ "core values", or pursue ABC in our "mission statement", it could/might/may explicitly follow some religious idea or another.

    Especially privately held companies not beholden to meddling shareholders.

    Most people are familiar with Chik-Fil-A. I was recently informed that Interstate Batteries, Tyson, In-N-Out Burger - among others - are pretty clear about following religious precepts or being "advised by" religious ideas as part of their companies' work.

    I actually make sure to spend money with these companies. I respect this.

  • Bo Cara Esq.||

    -If I set up my LLC or whatever as abiding by XYZ "core values", or pursue ABC in our "mission statement", it could/might/may explicitly follow some religious idea or another.

    Good point, perhaps that is the principle which the Court will rely on.

  • Raston Bot||

    Is that a grappling hook tailored for assaulting vag walls?

  • Lady Bertrum||

    Is that a grappling hook tailored for assaulting vag walls?

    TIWTANFL (This is why there are no female libertarians).

  • Warty||

    Answer the question.

  • Lady Bertrum||

    As the designated assaulter here at H&R (and through time and space I understand), you're the only one who can truly answer that question.

  • Swiss Servator, referendiffic!||

    Warty laughs at those that need to use tools for such work.

    Of course the rest of us do not have so any .... prehensile appendages...

  • Brett L||

    Its actually how nature evolved his assault appendage.

  • Almanian!||

    I'm listening to Trivissano's show on WTAM via the interwebs.

    It made me think of you. He was looking for fat women to call in earlier,so he could warn them that contraception doesn't work for them (IRONIC!)

    Yours in All Things Cleveland,

    Almanian

  • ||

    Yes, and those things give me the creeps.

  • ||

    More like a grappling hook tailored to stop assaults on vag walls. Or uterine walls, whatever. Trying to work with what I have here.

  • Swiss Servator, referendiffic!||

    dentata?

    In the "Snow Crash" sense of the term.

  • Live Free or Diet||

    I'm going to have to try again to read that. First time, I just didn't have the brain cells left over from work to get through it.

  • kinnath||

    The Greens specifically object to four kinds of contraception—Ella, Plan B, and two IUDs—that work by preventing implantation of fertilized ova, which they view as morally equivalent to abortion.

    . . . . .

    Last June the U.S. Court of Appeals for the 10th Circuit ruled that the contraceptive mandate probably fails this test, especially since it already exempts as many as 100 million health plans, including those offered by churches and other nonprofit religious organizations. The court also noted that the Greens have no religious objection to 16 of the 20 contraceptives covered by the mandate.

    I am so fucking tired of the press hiding all the important details.

  • wareagle||

    you sound surprised by this selective reportage.

  • kinnath||

    This case just seems worse than usual for some reason.

  • Almanian!||

    "Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?"

    JOOS and the Illuminati, leading the WAR AND WIMMINZ!!

  • ||

    I went by the gun store last week for my usual coffee and bullshit session only to discover that only one employee was there. The owner and other employees were off at a gun show and the usual drop-ins were not there.

    I dont know the guy well, or hardly at all really. He is always there but rarely engages in conversation. I thought I would pick up some rounds and sit for a while and get to know him.

    After about three minutes he started talking about the illuminati and how hollywood stars achieve fame by selling their souls to the devil. I just listened and nursed my coffee....until he got to the lizard people. If the guy was trolling me he did a damn fine job of it.

    When he paused in his rant I just said "Weeelppp.....I guess I better get moving. I left dogs in the house and I have to go let 'em out."

    People actually believe that shit?

  • Almanian!||

    No shit? HE really talked about Lizard People?

    Course, there was old Roger on the DEW engine line when I was at Lima. Claimed he'd been abducted by aliens. Could sit there and talk you through the quality issue he was working through, how he was looking for this one little mark on the piston, that you couldn't even see, and you'd be thinking, "God DAMN I am so glad Roger is on this line, cause he SO knows his shit about making engines..." and then BOOM!

    Lights and probes and spaceships and WHATTHEMOTHERFUCKAREYOUTALKINGABOUTROGER NODONTSTOPITSFASCINATING and then back to the current quality issue he was resolving.

    So I'd believe Lizard People come up - I've just never heard it yet myself.

  • Mainer2||

    I seem to recall it was George Will that said, when Obamacare passed, that progs were kidding themselves it they thought the fight was over. The fight was just beginning. This shit is going to go on for years. I'm in my 50's, and I can see Obamacare getting litigated and fought over for the rest of my life. Am I being pessimistic ?

  • Swiss Servator, referendiffic!||

    Nope, just able to observe what happens in this country, you are.

  • Brett L||

    Well, enough of it might be Unconstitutional in part that it collapses and is repealed.... I mean, lightning strikes people inside every so often.

  • Live Free or Diet||

    ALT-TEXT: The anchor for my favorite frigate.

  • widget||

    I'm OK with the government stealing my money for the purpose of handing out birth controls pills like Halloween candy.

  • Rufus J. Firefly||

    It's really hard to see if Obamacare will survive.

    In my lifetime, I've never seen a piece of legislation on this continent be this contentious from the start.

    The government always win, though, in the end, I fear.

  • widget||

    "In my lifetime"

    How old are you? Nixon's banana republic wage and price controls were a spectacular failure.

  • Rufus J. Firefly||

    Though I was born in the early 70s, I was not old enough to have seen that with any critical abilities. Too busy sucking on a tit or something.

  • Live Free or Diet||

    The first thing that happened was the invention of several new cuts of steak. If it never existed before, you can't hold it to an old price, right?

  • ||

    This being the ObamaCare thread for the day, I would like to direct your attention to this:

    http://www.politico.com/story/.....html?hp=l1

    The Gallup survey says that 19 percent of Americans say they have been hurt by the ACA, while 9 percent believe their families have benefited from the law. Sixty-nine percent, however, say “Obamacare” has not affected their situation at all.

    of course, the media is focusing on the fact that "most say they are unaffected". Blindly ignoring the fact that TWICE AS MANY people think it has hurt them relative to those who think it helped.

    That is a big deal. If more Americans believe the law harms them than helps them, that is bad news for the law's supporters. Who do you think the "unaffected" people are going to sympathize more with? The 9% who say they were helped, or the 19% who say they were harmed? The fact that "most are unaffected" just means that they are going to decide based on how they think it is affecting OTHER people.

  • ||

    The lengths to which people will go to kill defenseless babies in the womb are criminal, terroristic and cowardly. Everyone who does so should face an advocate for the baby who will physically fight to stop the crime. 50 million babies killed in their mother’s wombs in America. The slaughter of the innocents. There’s a payday someday!

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