This column by ACRU Senior Legal Analyst Ken Klukowski was published September 18, 2013 on Breitbart.com.
Obamacare is before the U.S. Supreme Court again. On Thursday, Alliance Defending Freedom (ADF) lawyers filed the first viable petition for Supreme Court review involving Kathleen Sebelius’ HHS Mandate, which requires employers to provide abortion-related insurance coverage, even if those employers have a religious objection to abortion.
Section 1001 of the Affordable Care Act (ACA, or Obamacare) requires all large employers to offer “preventive services” to their employees or face enormous financial penalties. With President Obama’s approval, Sebelius issued a regulation that defined preventive services to include access to birth control, including those that cause abortions after conception. The regulation issued by the U.S. Department of Health and Human Services (HHS) only allows narrow exceptions, such as for churches, but leaves other religion-oriented or religiously-owned employers subject to the regulation.
Over 60 lawsuits have been filed nationwide against this unprecedented government command. Many involve nonprofit entities, such as the University of Notre Dame. But roughly 35 of these lawsuits involve for-profit businesses which are wholly owned by a person or family with a religious belief against abortion, such as devout Christians.
These lawsuits argue both that the HHS Mandate violates the Free Exercise Clause of the First Amendment as well as a federal law called the Religious Freedom Restoration Act (RFRA). The federal appeals courts have split on whether a religiously-owned business can claim religious-liberty protections and whether requiring people to provide abortion-related services is a substantial burden on religious faith.
In Conestoga Wood Specialties v. Sebelius, the U.S. Court of Appeals for the Third Circuit held in its opinion that the company—owned by the Hahn family, who are devout Mennonites—must obey the HHS Mandate even though they believe abortion is immoral, because companies cannot assert religious-liberty rights.
In ADF’s petition for certiorari, the Hahns’ lawyers ask the Supreme Court to reverse the Third Circuit. The petition states, “Petitioners, a Mennonite family and their closely-held, family-run woodworking business, object as a matter of conscience to facilitating certain contraceptives that they believe can destroy human life.”
It is almost certain the Supreme Court will take up this issue in the coming year, and Conestoga is the first case to offer an acceptable vehicle for the justices to take up the question. Another such case would have been Hobby Lobby’s challenge to the mandate, but Hobby Lobby won before the Tenth Circuit appeals court; the Obama-Holder Justice Department has not asked the High Court to grant review.
This ADF case could well be the next case involving Obama’s namesake legislation considered by the Supreme Court, this time raising profound concerns regarding religious liberty impacting millions of Americans, especially observant Christians.
“All Americans, including family business owners, should be free to live and do business according to their faith,” ADF Vice President David Cortman—who is lead counsel in the case—told Breitbart News in a statement. “A major aspect of freedom is at stake: If the government can force the Hahns to violate their faith just to engage in their livelihood, then the government can do the same or worse to others.”
ADF Senior Counsel Matt Bowman agrees. “The question is whether the government can pick and choose what faith is, who the faithful are, and when and where they can exercise that faith.” Bowman, who has argued several of ADF’s ten lawsuits nationwide against the HHS Mandate, added as another dimension of this case, “The cost of religious freedom for the Hahn family and many other job creators across the country who face this mandate is severe. The potential for massive fines and lawsuits would cripple their businesses and threaten jobs.”
The Obama administration now has 30 days to explain to the Supreme Court why the justices should not take this case and resolve the split between the federal appeals courts. The Court will likely vote in November whether to hear arguments in the case, which, if granted, would occur next spring.