'Conscience', Contraception And The Court

Sectarian Lobbies Are Demanding That Federal Judges Curtail Americans' Access To Reproductive Health Care

Hobby Lobby is one of the largest chains of craft stores in the United States. It’s a popular spot for people who want to buy fabrics, decorative paint, sewing kits, scrapbooking supplies and so on.

Selling arts and crafts supplies would not seem to be particularly religious in nature, and many of the chain’s customers might be surprised to learn that Hobby Lobby considers itself an evangelical Christian enterprise.

A visit to the company’s website bears this out. The firm’s mission statement reads, “Honoring the Lord in all we do by operating the company in a manner consistent with Biblical principles.” It also adds, “We believe that it is by God’s grace and provision that Hobby Lobby has endured. He has been faithful in the past, and we trust Him for our future.”

The site also includes a list of “ministry projects” – organizations the corporation works with “to share the Good News of Jesus Christ to all the world.” These include Oral Roberts University and Wycliffe, a missionary agency that translates the Bible into many languages for global evangelism.

The Oklahoma City-based company’s religious underpinnings might have been under the radar for a lot of shoppers, but recently they’ve been attracting a lot of attention. Last year, Hobby Lobby announced that it opposed a new rule from the Obama administration that requires businesses to offer their employees health insurance policies that cover no-copay contraceptives.  The company felt so strongly about the birth-control matter that it took the issue to court.

So far, it’s not having much success. Hobby Lobby sought a preliminary injunction that would free it from abiding by the birth-control mandate while the matter was in court. But a string of federal courts, including the Supreme Court, rejected the company’s request.

Hobby Lobby’s owners subsequently announced that the company planned to defy the law – even in the face of fines that could exceed $1 million per day.

“They’re not going to comply with the mandate,” Kyle Duncan, general counsel of the Becket Fund for Religious Liberty, a Catholic-oriented legal group that is representing Hobby Lob­by, said in a statement. “They’re not going to offer coverage for abortion-inducing drugs in the insurance plan.”

The skirmish over Hobby Lobby is part of an unprecedented barrage of lawsuits unleashed by the Religious Right and the all-male hierarchy of the Roman Catholic Church to overturn the contraceptive mandate and block access to safe and affordable birth control for millions of Americans.  Having failed to stop health care reform in Congress, the bishops and the Religious Right are now relying on an avalanche of lawsuits to eviscerate the contraceptive mandate in court.

The bishops have been preaching against birth control for years, and some Religious Right leaders have joined them, charging that some forms of contraception are “abortifacients.” But their arguments have fallen on deaf ears with most of the public. Americans have simply ignored them, and use of artificial contraceptives remains high. 

That’s partly because access to birth control is guaranteed by most insurance providers. That will change if the bishops and their Religious Right allies have their way.

If they win in court, these powerful sectarian pressure groups will have succeeded in disrupting the single most important advance in reproductive health care since the invention of birth control pills – and they will have done it in the name of “religious liberty.”

How did we get to this point? 

After the Department of Health and Human Services announced the requirement for birth control coverage last year, right-wing legal groups organized a massive court crusade to undermine the regulation. Representing both religious nonprofits and secular businesses, they filed a blizzard of lawsuits in federal courts around the country.

The mandate, which is an outgrowth of the Affordable Care Act, exempts houses of worship. Religiously affiliated institutions such as church-run colleges and hospitals won a reprieve as the Obama administration works to craft a compromise policy to cover their employees.

That policy is due in early spring with a final rule before August. The Obama administration has suggested erecting a buffer between religiously affiliated institutions and the provision of birth control.

The institutions would not have to provide it to their employees directly but would be required to use an insurance company that provides contraceptives at no fee. The cost would be shouldered by the insurance provider. (The Catholic bishops have already called this accommodation unacceptable.)

Secular businesses were required to begin complying with the mandate as of Jan. 1. Thus, many of the court decisions to date focus on them. 

Citing the Religious Freedom Res­toration Act, a federal law passed in 1993, Religious Right groups argue that secular companies and their owners have a broad “conscience” right that allows them to deny their workers access to birth control through their insurance plans. Anthony Picarello, general counsel for the U.S. Conference of Catholic Bishops, put it bluntly last year when he stated that if he owned a Taco Bell, he should be able to deny his employees access to contraceptives.

More than 40 lawsuits challenging the mandate were filed by groups like the Becket Fund, which despite its Catholic orientation employs Religi­ous Right-style legal arguments in court. Others filing lawsuits include the Thom­as More Law Center, the Am­er­i­can Center for Law and Justice and the Alliance Defending Freedom. Several rulings have emerged from the courts, falling on both sides of the issue.

According to the Becket Fund, rulings have been handed down in 14 cases involving for-profits so far, and nine have resulted in injunctions against the mandate.

Those injunctions, however, may not survive as the cases bubble up to the appeals court level. Already there is a split in the appellate courts. The 10th U.S. Circuit Court of Appeals denied Hobby Lobby’s request for an injunction as its appeal goes on, but the 7th U.S. Circuit Court of Appeals, ruling in a case brought by a firm owned by Domino’s Pizza founder and ultra-Catholic activist Thomas Monaghan, ruled in favor of an injunction.

Cases are also pending before the U.S. 8th Circuit Court of Appeals and the U.S. 6th Circuit.

One thing all of the cases have in common is that they are brought by businesses that have little or nothing to do with religion. Their owners tend to be conservative Catholics or fundamentalist Protestants. They argue that even offering birth control as a health insurance option violates their religious freedom.

The 8th Circuit case, O’Brien v. U.S. Department of Health and Hu­man Services, is a good example. The legal challenge was brought by TV preacher Pat Robertson’s American Center for Law and Justice on behalf of the owners of a mining company in Missouri.

The firm, O’Brien Industrial Holdings, states that its mission is to “make our labor a pleasing offering to the Lord while enriching our families and society.” Its website quotes from the Book of Ephesians. Its headquarters in St. Louis displays a statue of the sacred heart of Jesus.

O’Brien Industrial Holdings is a holding company for four smaller firms that run mines and manufacture materials used in mining, mostly ceramic products. Although these are hardly religious undertakings, the firm insists it has the right to tailor its employee health care plan to meet the conservative Catholic beliefs of the company’s owners. 

Americans United disagrees.

“Religious liberty includes no right to tell others what to do,” said AU Executive Director Barry W. Lynn in a media statement. “The appeals court must uphold this rule. Otherwise, Americans will find their medical rights defined by what their bosses believe about religion.”

Americans United’s Legal Department in late December filed a brief in the O’Brien case, arguing that the mandate imposes only an incidental and indirect burden on O’Brien’s religious liberty and serves to advance an important interest: making certain that Americans have access to the full range of medical care.

“Mr. O’Brien has every right to refrain from using contraceptives and to attempt to persuade others to do the same,” AU’s brief asserts. “But once he enters the secular market for labor to staff his secular, for-profit corporation, he may not force his religious choices on his employees.”

Elsewhere the brief notes, “The insurance company provides the employees of O’Brien Industrial Holdings with a full menu of medical procedures and services, not just contraception alone, thereby distancing the corporation from any particular form of covered care. Even the insurance company pays for contraception only if an employee makes a private, independent decision to use contraception, and even that decision often is preceded by an independent physician’s decision to prescribe contraception.”

Three other groups signed onto the AU brief: the Union for Reform Judaism, the Central Conference of American Rabbis and the Women of Reform Judaism.

Americans United has been engaged in the debate over the contraceptive mandate since the Obama administration first announced that no-cost birth control would be included in baseline health care plans.

The decision to include contraceptives angered some evangelical and Roman Catholic groups from the start. Although use of artificial forms of birth control is widespread in the United States, the hierarchy of the Roman Catholic Church still preaches that such medications and devices are sinful.

But the clergy are fighting a losing battle: Polls show that the overwhelming majority of American Catholics ignore the bishops’ directives and use artificial contraceptives at the same rate as non-Catholics – although the hierarchy hasn’t let that widespread disobedience slow them down.

At the same time, a number of fundamentalist Protestant groups joined the bishops in attacking the provision. Some of these organizations asserted that they consider certain forms of birth control to be the equivalent of abortion. Others simply don’t like Obama or health care reform.

The politically powerful Catholic hierarchy is exercising its muscle in Washington. The bishops are aggressively lobbying the White House and Congress to eviscerate the mandate, and they have made it clear that they’re not in the mood to compromise.

“The only thing we’re certainly not prepared to do is give in,” New York City Archbishop Timothy Dolan told reporters in November. “We’re not violating our consciences. I would say no door is closed except for the door to capitulation.”

To date, much of the legal skirmishing has focused on requests filed by firms seeking preliminary injunctions exempting them from abiding by the mandate as the cases wind their way through the courts.

There was a flurry of activity in late December. After Hobby Lobby’s request for an order was denied by the 10th U.S. Circuit Court of Appeals, the Becket Fund, which is handling several of these cases, asked the U.S. Supreme Court to rule on the matter.

In cases dealing with requests for injunctions, the high court’s procedures call for one justice to handle the matter, with each justice being responsible for a different section of the country. Justice Sonia Sotomayor has jurisdiction over the courts in the 10th Circuit; on Dec. 26, she declined to rule the Becket Fund’s way.

In a brief opinion, Sotomayor wrote that Hobby Lobby had not met the steep standard required for granting an injunction on appeal.

“[W]hile the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction,” she wrote. “Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts.”

Days after that ruling, however, the 7th U.S. Circuit Court of Appeals ruled 2-1 in favor of Korte & Luitjohan Contractors of Highland, Ill., a construction firm owned by a Roman Catholic couple who say that complying with the mandate would violate their rights. The appeals court blocked implementation of the mandate against the firm while the case is on appeal and even implied that secular corporations have religious liberty rights.

That aspect of the ruling especially alarmed church-state separation advocates, who noted that religious liberty generally has been considered an individual right or one limited to religious bodies, not something extended to secular corporations and businesses. The appeals court’s language echoed that of the controversial Supreme Court ruling in the Citizens United v. Federal Election Commission case, which found that corporations have free speech rights.

But another appeals court, the 6th U.S. Circuit Court, ruled the opposite way on Dec. 28. That court ruled in a challenge brought by a Catholic family named Kennedy who own a Michigan manufacturing firm called Autocam. Upholding a lower court decision, the three-judge panel ruled 2-1 to deny Autocam’s request for an injunction.

The lower court seemed skeptical of the idea that secular corporations have religious liberty rights.

“The mandate does not compel the Kennedys as individuals to do anything,” observed U.S. District Judge Robert J. Jonker of the Western District of Michigan, Southern Division. “They do not have to use or buy contraceptives for themselves or anyone else. It is only the legally separate entities they currently own that have any obligation under the mandate.” (Autocam Corp. v. Sebelius)

Right-wing rhetoric about the issue long ago went over the cliff.

Longtime far-right figure Brent Bozell charged, “With the stroke of a pen, the Obama Administration has shredded the First Amendment and the Constitution right before our eyes.”

Mega-church pastor Rick Warren has also been weighing in. Warren recently told Fox News Channel host Sean Hannity that the mandate is akin to ordering Jewish delis to sell pork.

“Why would you force people who have a conviction against it to be forced to sell pork?” Warren asked. “To say to Catholics, ‘You have to sell something that’s against your conviction,’ these are all creeping liberty destroyers.”

Overheated, inaccurate rhetoric like this, AU asserts, only serves to inflame passions. It’s also out of step with the views of the American people, who don’t see a problem with greater access to contraception.

A November poll by LifeWay Research, a firm affiliated with the Southern Baptist Convention, found that 63 percent of respondents said businesses should be required to provide their employees with no-cost birth control, even if it conflicts with the owners’ religious beliefs.

Much is at stake in this legal battle. Not only is access to safe and reliable contraceptives – which millions of Americans rely on – at risk, but the legal precedent established by the slew of cases could spill over into a range of other issues.

If the Religious Right and the bishops prevail in court, it’s a certainty that they’ll soon start making other demands. An individual’s religious beliefs could suddenly trump anti-discrimination laws, for example.

AU’s brief in the O’Brien case lists some of the possible fallout: “[A] landlord might refuse to rent to individuals who use their apartments to practice a different religion – and argue that providing shelter for this type of religious activity would violate the landlord’s own religious beliefs. Owners of hotels and restaurants could refuse to comply with the public accommodations laws, raising religious objections to providing nour­ishment and shelter to those who would use that sustenance and lodging to take actions that violate the owners’ religious beliefs. A Christian-owned cab company could refuse to drive passengers to mosques; a Muslim-owned car service could refuse to haul clients to synagogues; a Jewish-owned bus company could refuse to take people to church.”

As the legal challenges move up the legal ladder to the appeals level, Americans United will watch developments closely. AU’s Legal Department plans to file friend-of-the-court briefs in the cases, arguing that secular corporations and religiously affiliated institutions such as colleges and hospitals have no right to deny their employees access to birth control coverage.

 “Americans rightly treasure religious freedom,” said AU Senior Litigation Counsel Gregory M. Lipper. “But Americans also know that religious freedom does not include the right to make moral decisions for others, and it certainly doesn’t include the right to interfere with the private medical choices of other people.”