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.