One of the most important religious liberty cases in a generation will come before the Supreme Court on Tuesday. Hobby Lobby and Conestoga Wood Specialties will be making their final appeal for an exemption from Obamacare’s coercive “contraceptive” mandate. Obamacare requires employers to provide health coverage for all FDA-approved contraceptive devices. So what’s the problem?
Some of the devices—like IUD’s and morning-after pills—can cause abortions. The owners of Hobby Lobby and Conestoga are Christians and have said that they cannot in good conscience pay for coverage that can lead to killing an unborn human being. So these Christians have a choice. Either violate their conscience and provide coverage for abortion inducing drugs, or face crippling fines that will effectively put them out of business. And that is why they are at the Supreme Court—to ask for relief from government coercion to sin.
The contraceptive mandate is one of the most egregious violations of religious liberty that I have ever seen. The United States Government is forcing these Christian business owners to pay for abortion inducing drugs in their employees’ insurance plans. It doesn’t matter that the law violates their religious liberty to conduct business in a way that is consistent with their conscience. Obamacare mandates that these Christians comply or face fines that will put them out of business.
As we approach oral arguments on Tuesday, you will likely encounter a great deal of commentary on this case. You can be sure that much of the coverage that you will hear will be driven by leftist propaganda that distorts what is really at stake. On Saturday, for instance, the nation’s “paper of record” The New York Times published an editorial that was filled such distortions. So here’s a look at some of the most common canards that you will be hearing and how you ought to think about them.
“The owners of Hobby Lobby and Conestoga are denying their employees access to contraceptives.”
These Christian business owners are not trying to take away an employee’s right to purchase contraceptives. Nor are they trying to deny employees access to health coverage that provides contraceptives. Those who claim that they are are telling outright, demonstrable falsehoods. There’s nothing in Hobby Lobby’s suit that would deny any person the freedom to purchase contraceptives or insurance coverage for those devices.
This case is not about a woman’s “right” to purchase contraceptives and abortifacient drugs. This case is about who will be forced to pay for them. President Obama believes that the federal government has a right to force Christian employers to pay for contraceptives and abortifacient devices. Hobby Lobby and Conestoga are simply saying that they cannot in good conscience pay for those things.
“The owners of Hobby Lobby and Conestoga are trying to impose their religious beliefs on their employees.”
This claim is a fundamental misunderstanding of what’s going on in this case. No one is asking these employees to become Christians. No one is even asking them to submit to Christian scruples about contraceptives and abortion. Employees are still free in this country to buy contraceptives and abortifacient drugs. They are not free to expect Christians and other people of conscience to pay for them. Hobby Lobby’s desire not to pay for their employees’ contraceptives is hardly “forcing” their religion onto them. Anyone who thinks that it is is either severely confused or cynically dishonest.
“None of the FDA-approved contraceptive devices cause abortions.”
I have written about this claim extensively both on this blog and in my book. It is not true. The FDA’s own labels list an abortifacient mechanism of action for morning-after pills Ella and Plan B. It is not the primary mechanism of action, but it is one of them. Recent studies have called into question an abortifacient mechanism for Plan B. But no such studies exist for Ella. Nor do such studies exist for IUD’s. The potential abortifacient mechanism for these two is widely known, as the FDA labels indicate.
“Hobby Lobby has the option to stop offering health plans to employees that include coverage and to pay the tax.”
This option is not really an option. They would either have to drop their health plan altogether or pay a crippling punitive tax that would put them out of business. If Hobby Lobby fails to offer health insurance to their employees that includes coverage for abortion inducing drugs, then they become liable to the “Employer Shared Responsibility Payment” under Obamacare. That tax for not offering coverage is $2,000 per month per employee. Hobby Lobby has 21,000 employees, 13,000 of whom are covered on their insurance plans. As Emma Green reports for The Atlantic:
If they were to lose in court, this stance would almost certainly be a financial catastrophe for Hobby Lobby: They would be forced to drop their insurance plan and pay the $26 million penalty, or else provide insurance without birth control and pay up to $100 per day per employee for not complying with the health care law. With 13,000 employees currently covered by Hobby Lobby’s plan, their legal team estimates that this could mean up to $1.3 million in fines every day, or $475 million each year.
The latter scenario is a punitive tax designed to put them out of business if they do not comply. It’s precisely why they are suing. It’s not reasonable to expect them to pay this. If they did, they would be submitting to a punishment imposed on them because of their religious convictions.
“Christian business owners are crying wolf about religious liberty. They still have freedom to worship.”
The editors of the New York Times make this argument saying that Hobby Lobby and Conestoga are “crying wolf” about religious liberty. After all, the editors argue, they still have freedom of worship. But the first amendment to the constitution guarantees more than freedom of worship. Religious liberty is not merely about what takes place behind the doors of your church on Sundays. The first amendment guarantees freedom of religion—meaning that it is a fundamental human right to practice our religion in every facet of our lives, including our professional lives. If the Supreme Court ever proscribes the first amendment to mean only freedom of worship and not freedom of religion, it will be comprise the most aggressive assault on religious liberty in this nation’s history. But I don’t think that the Supreme Court is going to go there, even though the leftist mavens of the New York Times would like them to.
“Corporations like Hobby Lobby are not persons and have no claim on religious liberty. Nor does the ‘Religious Freedom Restoration Act’ apply in this case.”
Ramesh Ponuru has written compellingly on these legal points and shows that neither of these claims is correct. He concludes, “So long as the principle behind the lawsuits is defined precisely, the arguments against it and them are very weak.” I leave you to read the rest of his article here. For more on the legal issues involved, I would also commend to you Robbie George’s analysis in today’s Wall Street Journal.
Oral arguments will be heard on Tuesday. The justices will render a decision in June. No doubt, we will have much more to say about this case moving forward. For now, it would be a good time for Christians to pray for a favorable outcome in this case. If you don’t care very much about this issue now, it won’t be long before you will be made to care. The justices’ decision will affect all of us.
The Heritage Foundation produced the following video summarizing what’s at stake in this case for religious liberty and why it matters for all Americans.