This column by ACRU Senior Legal Analyst Ken Klukowski was published March 24, 2014 on Breitbart.com.
On Tuesday, Mar. 25, the Supreme Court will hear its next cases on President Obama’s controversial signature law. These two cases involve whether it violates either federal law or the U.S. Constitution to compel Christian business owners to provide abortion-related drugs that can destroy human embryos after conception, which those owners regard as immorally destroying human life. The cases are Sebelius v. Hobby Lobby and Conestoga Wood Specialties v. Sebelius. They are challenges to Obamacare’s HHS abortion/contraception mandate.
Breitbart News has already reported extensively on the details of these cases. In summary, Section 1001 of the Affordable Care Act requires large employers’ insurance plans to cover “preventive care.” The Obama administration issued a regulation defining “preventive care” as including various forms of birth control. Employers whose policies do not provide such coverage face a fine of $100 per employee, per day. (That means an annual penalty of $36,500 per employee.) This regulation from the U.S. Department of Health and Human Services (HHS) is called Obamacare’s abortion mandate or contraception mandate.
Some of these birth-control drugs can destroy a human embryo after conception. Hobby Lobby is owned by the Green family, who are Evangelicals. Conestoga is owned by the Hahn family, who are Mennonites. The Greens and the Hahns believe that life begins at conception, and therefore that destroying even an early-stage human embryo destroys a human life. Hobby Lobby is being represented by the Becket Fund for Religious Liberty, and Conestoga is being represented by the Alliance Defending Freedom.
These cases involve two levels of federal law. One is the Religious Freedom Restoration Act (RFRA)–a federal statute that provides any federal statute or regulation that substantially burdens a person’s religious faith is illegal unless the government can show how the burden is necessary, and the least restrictive means, to achieve a compelling public interest. The other is a provision of the First Amendment of the U.S. Constitution–the Free Exercise Clause–which guarantees the fundamental right to exercise your faith.
Between the two cases, the following issues are presented: (1) Is requiring a business owner who religiously objects to abortion to provide coverage for birth control that can destroy human embryos a substantial burden on that religious faith? (2) If a company is privately owned by a religious family, can that business assert a religious-liberty claim under RFRA? (3) Does the HHS abortion mandate violate RFRA? (4) Does the HHS abortion mandate violate the Free Exercise Clause of the First Amendment?
The Court has consolidated these cases, and scheduled them for 90 minutes of total argument time. Breitbart News will be in the courtroom, and will provide firsthand analysis on how arguments play out on Tuesday.