Civil and Human Rights

Hobby Lobby contraception case set to go before Supreme Court this week

At issue is whether a corporation can claim religious freedom the same as individuals.

By BILL SHERMAN

 

The U.S. Supreme Court will hear opening arguments Tuesday in an Oklahoma-based case with national implications.

 

At issue is whether the federal government’s Affordable Care Act can require Hobby Lobby, a private Oklahoma City-based company with Christian owners, to provide its employees with contraceptive drugs the owners say induce abortion.

 

“This is a big case, far-reaching for our culture,” said Tony Perkins, president of the Washington, D.C.-based Family Research Council, which filed an amicus brief in the case in support of Hobby Lobby.

 

“This case goes way beyond the issue of contraception. … It’s about the breach of the firewall around religious freedom,” said Perkins, who will speak at Oral Roberts University this week.

 

Hobby Lobby CEO and founder David Green wrote in an open letter: “The government is forcing us to choose between following our faith and following the law. I say that’s a choice no American and no American business should have to make.”

 

Supporters of the mandate argue that a company has no right to deprive women of birth control measures legally offered to them under the Affordable Care Act.

 

The Hobby Lobby case has been consolidated with a similar case filed by Conestoga Wood Specialties, a cabinetry corporation owned by Mennonites.

 

Hobby Lobby provides contraception coverage in its employee insurance program, but the Affordable Care Act requires companies to offer all of the drugs approved by the Federal Drug Administration, including the so-called morning-after pill, and the IUD, which prevent a fertilized egg from implanting in the uterus.

 

Hobby Lobby owners’ position is that life begins at fertilization, so preventing a fertilized egg from implanting constitutes taking a human life, in violation of their Christian principles.

 

Dozens of faith-based schools, businesses and religious organizations have filed similar suits and will be watching the case.

 

Everett Piper, president of Oklahoma Wesleyan University in Bartlesville, said the high court’s decision will have a direct bearing on their case.

 

He said the university sued the federal government because “we are being required to comply with the mandate to provide abortifacient drugs to our employees, which is in direct opposition to our First Amendment rights, to Wesleyan church discipline, and basic Christian orthodoxy.”

 

Churches and certain other strictly religious organizations are exempted from the mandate.

 

The case will turn on whether legal protections afforded individuals should be applied to corporations and whether the government has a compelling interest in forcing Hobby Lobby owners to follow the new law.

 

Eric Baxter, senior counsel for the Becket Fund for Religious Liberty, the law firm representing Hobby Lobby, said the 1993 Religious Freedom Restoration Act, commonly called RFRA, is at the heart of the case.

 

RFRA provides that the government cannot substantially burden a person’s religion without a compelling reason, he said.

 

“When RFRA was passed, Congress explicitly acknowledged that businesses would be protected,” he said. “Otherwise, any time someone opened a Christian bookstore or a kosher butcher shop, they would lose all their freedom.

 

“It seems to me that the law is clear. The courts have long held that religious liberty extends to corporations. The courts have also protected the religious liberties of individuals who earn profits.”

 

The government is expected to argue that the law applies to people, but not to businesses.

 

“The big question at the heart of the Hobby Lobby case is whether corporations have the same right to exercise religion as living, breathing persons,” said David Gans, with the Constitutional Accountability Center, a think tank law firm that filed briefs in the Hobby Lobby case supporting the government.

 

“In its 225-year history, the Supreme Court has never given secular, for-profit corporations religious free exercise rights, and it shouldn’t start now,” Gans said. “Religious liberty has always been a fundamental personal right, and it’s always been linked to a human capacity to express devotion to a God, and to act on the basis of reason and conscience.

 

“Corporations lack these human capacities. What’s really at stake is whether corporate CEOs will have the right to impose their religious beliefs on their employees and deny them important federal rights, in this case, rights provided by the Affordable Care Act to protect women’s health and safeguard reproductive freedom.”

 

Gans added: “A win for Hobby Lobby would be a grave setback for the rights of Americans in our nation’s workplace.”

 

Doug Kendall, founder and president of the Constitutional Accountability Center, said a Hobby Lobby win also could bolster the right of companies to refuse service to gays if the owners have a religious objection to the practice of homosexuality.

 

Baxter said the definition of pregnancy will not be an issue in the case.

 

Some have argued that pregnancy does not begin until a fertilized egg is implanted in the uterus, so drugs which prevent implantation do not interrupt pregnancy, and therefore do not cause abortion.

 

“The government has already conceded that the drugs to which Hobby Lobby objects have the effect that Hobby Lobby opposes … preventing implantation of a fertilized egg, which Hobby Lobby considers to be an abortion,” Baxter said.

 

He said a decision in the case is expected in late June.

 

If Hobby Lobby loses the case, they could face fines of $1.3 million a day.

 

Company president Steve Green was not granting interviews this close to the Supreme Court hearing, but he recently told the Religion News Service he didn’t know what they would do if they lose the case. He said he knows what they will not do: violate their religious principles.

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