Supreme Court Slows Obamacare’s Abortion Agenda

The Supreme Court waited until the last day of its term to issue its highly anticipated opinion in Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties.

The narrow 5-4 decision negates the “contraceptive mandate” of the Health and Human Services (HHS) regulations issued to implement the Affordable Care Act (i.e., Obamacare). Heretofore, these regulations required the owners of so-called “closely held” business enterprises to include insurance coverage for abortion-inducing drugs and devices even when that kind of coverage violated their religious convictions. The holding is an important victory for religious liberty and a blow to pro-choice advocates who painted opposition to the mandate as a women’s rights issue.

Justice Samuel Alito delivered the opinion of the high court with his usual clarity. The court’s majority relied upon the Religious Freedom Restoration Act (RFRA) which Congress passed in 1993 and which President Clinton signed into law. The RFRA requires the Supreme Court to use a particular three-point approach to religious liberty cases involving the federal government. If federal governmental action: 1) substantially burdens the free exercise of religions; 2) and its purpose is not compelling or; 3) if it fails to use the least restrictive means to its end, then the RFRA brands it illegal. Justice Alito’s opinion worked its way through the requirements of the RFRA.

The court first found that the federal contraceptive mandate imposed a “substantial burden” on the religious exercise of the two families, the Hahns and the Greens, owners of the companies in question. If they refused to comply with the HHS contraceptive fiat, they faced fines for “as much as $1.3 million per day, or about $475 million per year.” It was either pay up or forfeit one’s religious beliefs. Alito said: “If these consequences do not amount to a substantial burden, it is hard to see what would.”

Next, the court assumed without deciding that the government may have had a “compelling interest” in issuing the regulations. It stresses that it was “unnecessary to adjudicate this issue.”

Thirdly, since the federal government had “already devised and implemented a system that seeks to respect the religious liberty of religious non-profit corporations while insuring employee access to contraceptives,” President Obama and his HHS had a “less restrictive means” of achieving their end but they failed to make it available to for-profit enterprises owned and operated by persons with religious convictions. Therefore, said the majority, “The contraceptive mandate, as applied to closely held corporations, violates the RFRA.”

Justice Alito cogently refutes one of the central claims of the government’s opposition to Hobby Lobby and Conestoga. That assertion was that corporations do not have free exercise of religion rights. First, Alito explained that the language of the RFRA refers to the religious liberty of “persons” being protected from federal proscription. Federal law unambiguously includes “corporations” in the definition of “persons.” Secondly, “protecting the free exercise rights of corporations like Hobby Lobby, [and] Conestoga … protects the religious liberty of the humans who own and control these companies.”

Alito recognizes what the legal brief for the Hahns so strikingly set out:

Whatever the legal status of their organizations, owners and operators, do not check their beliefs at the door each Monday morning. They live their faith throughout the work week. Hence it is the Hahns’ religious beliefs that prevent Conestoga from providing drugs and services that end a newly formed human life. There is no separating the two.

Are there limits to this decision? Yes.

First, the court states that “we have no occasion in these cases to consider the RFRA’s applicability to” publicly traded companies. However, limiting the decision to the facts of the case—that is, one involving closely held corporations—is not unusual. It is part of normal judicial restraint.

Secondly, this decision has to do with federal governmental action. Unfortunately, religious liberty is also being restricted by state governmental action. There, litigants must depend on their own state constitutions or state RFRAs for protection.

The high court waited until the final day of its term to issue this extremely important decision. Burwell v. Hobby Lobby Stores and Conestoga Wood Specialties will not be forgotten anytime soon.