ACRU Supports Hobby Lobby Against ObamaCare Contraceptive Mandate


ACRU Staff


January 28, 2014

“Individuals have Free Exercise rights with respect to their for-profit businesses.”

WASHINGTON, D.C. (Jan. 28, 2014) – The Affordable Care Act’s contraceptive mandate unconstitutionally violates the religious freedom of a Christian family that owns a chain of craft stores and a chain of Christian bookstores, the American Civil Rights Union argues in a brief submitted today to the U.S. Supreme Court.

Written by ACRU General Counsel Peter Ferrara, the brief in Sebelius v. Hobby Lobby Stores, Inc., Mardel Stores Inc., David Green, et al. notes that the Green family’s refusal to offer insurance coverage of abortifacients to their employees is protected under the First Amendment and the Religious Freedom Restoration Act (RFRA).

The brief asks the Court to affirm a ruling for Hobby Lobby on those grounds by the 10th Circuit U.S. Court of Appeals.

“This [Supreme] Court has long held that individuals have Free Exercise rights with respect to their for-profit businesses,” the ACRU brief states. “And RFRA does not say that ‘when individuals incorporate’ a for-profit business, their ‘Free Exercise rights somehow disappear.'” In the Tenth Circuit, “the government identified ‘no principled reason why an individual who uses the corporate form in a business must thereby sacrifice the right to the free exercise of religion.'”

RFRA, which Congress enacted in 1993, says “the government ‘shall not substantially burden a person’s religious exercise’ unless that burden satisfies the legal standards of strict scrutiny,” a condition that the government has not met, the ACRU brief argues.

The Green family, which owns Hobby Lobby and Mardel, provides a self-funded health insurance plan to its employees. The plans cover 16 contraceptives, but not RU-486, “which can terminate a pregnancy by chemical poisoning of the baby in the womb,” or coverage for “Plan B, Ella, and two types of intrauterine devices that can prevent an embryo from implanting in the womb, resulting in death of the embryo,” the brief notes.

Under the Affordable Care Act (ObamaCare), Hobby Lobby faces “fines of $100 a day for each of its 13,000 employees, or at least $1.3 million per day or almost $475 million per year.”

“Congress enacted RFRA after more than a century of jurisprudence recognizing that corporations exercise a broad range of constitutional rights,” the brief states. “That is why corporations have long been treated as ‘persons’ under the Equal Protection Clause, the Due Process Clause and section 1983.

“The government Petitioner has failed to offer any compelling interest that would justify the particular substantial burden on religious liberty in this case. There is no showing of how allowing these two corporations exemptions from four of the 20 contraceptive drugs and devices required by the contraceptive coverage mandate would adversely affect any compelling interest. Nor is there any showing that the contraceptive coverage mandate is the least restrictive means of serving any such compelling interest.”



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