) – The Obama Administration isn’t giving up the fight to force the Christian-owned Hobby Lobby chain of craft stores to abide by the controversial HHS contraception mandate.
On Wednesday the administration asked the Supreme Court to overturn a federal appeals court ruling granting Hobby Lobby an exemption from the mandate, which requires employers to provide co-pay-free coverage for contraceptives, sterilization and abortion-causing drugs for all females of childbearing age enrolled in their company’s health plan.
More than 60 company owners have sued the Obama Administration over the directive, arguing that forcing them to pay for procedures and drugs their faiths hold to be immoral violates their constitutionally-protected religious freedom.
In the Hobby Lobby case, the company’s owners sought an exemption from the mandate because it requires coverage for so-called ‘emergency contraception,’ which works at least some of the time by making the uterus inhospitable to an already-fertilized embryo, inducing early abortion – something that goes against the owners’ Christian faith. Initially, a lower court rejected their case, but in July, the Tenth Circuit Court of Appeals overturned their decision and Hobby Lobby was granted an injunction.
In its decision, the Tenth Circuit asserted that Hobby Lobby had “established a likelihood of success that their rights under this statute are substantially burdened by the contraceptive-coverage requirement, and have established an irreparable harm.”
But on Wednesday, just five days before the court-ordered deadline, the Obama Administration asked the Supreme Court to overturn the Tenth Circuit’s ruling, and accused Hobby Lobby’s owners of trying to use their religious freedom as a “sword” to cut their employees off from the “benefits and protections” offered by the contraceptive mandate.
The government’s attorneys argued that because Hobby Lobby is a for-profit corporation, it is not entitled to the same religious rights as an individual or a church. It’s an argument that has met with success in two other similar cases this year in both the Third and Sixth Circuit Courts, decisions which the government cited heavily in its petition.
“The United States government is taking the remarkable position that private individuals lose their religious freedom when they make a living,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby. Added Duncan, “We’re confident that the Supreme Court will reject the government’s extreme position and hold that religious liberty is for everyone—including people who run a business.”
But the Obama Administration’s lawyers argued in their court filing that even if religious liberty was found to apply to for-profit corporations, in the case of the HHS mandate, the government’s “compelling interest” in making contraceptives freely available to every woman supersedes the company’s right not to pay for them.
“[The Religious Freedom Restoration Act] provides that the federal government ‘shall not substantially burden a person’s exercise of religion’ unless application of that burden is ‘the least restrictive means of furthering [a] compelling governmental interest,” wrote the government lawyers.
“[T]he contraceptive-coverage requirement,” they asserted, “is the least restrictive means of advancing compelling governmental interests.”
According to the government’s attorneys, the HHS mandate serves a compelling governmental interest because when it comes to the government’s plan to improve Americans’ health, “increased access to FDA-approved contraceptive services in particular is a key component,” and when women have to pay out-of-pocket for contraceptives, it makes them less likely to use them.
Although the World Health Organization lists hormonal contraception as a Class 1 cancer-causing agent, the U.S. government asserts that contraceptives “improve health by decreas[ing] the likelihood or delay[ing] the onset of a targeted disease or condition,” in this case, pregnancy. Wrote the government’s lawyers, “a lack of contraceptive use has proven in many cases to have negative health consequences for both women and children.”
The government appeared to issue a veiled threat to both the Court and future religious objectors should the decision not go its way, telling the Court that “It would be perverse to hold that providing a targeted religious exemption [such as the one currently offered to some churches and religious charities] eliminates the government’s compelling interest in the underlying regulation, thus effectively extending the same exemption … to anyone else who wants it.”
“Such a reading of [the Religious Freedom Restoration Act],” the government’s lawyers warned, “would discourage the government from accommodating religion, the exact opposite of what Congress intended in enacting RFRA.” (Emphasis theirs.)
The high court has six weeks to consider the government’s petition. If the justices agree to hear the Hobby Lobby case, it will be argued and decided before the end of the Court’s term in June 2014.
The Hobby Lobby case is one of two cases dealing with the HHS mandate that were submitted to the Court Wednesday. The other is Conestoga vs. Sebelius, one of the two cases cited by the government in its filing in which the Third Circuit ruled against the Christian owners of a custom cabinet manufacturing company, forcing them to comply with the contraceptive mandate. The company owners have requested that in light of the circuit courts’ differing opinions, the Supreme Court review their case, as well.