First HHS Mandate cases get to U.S. Supreme Court

In 1969, in the Tinker case involving the First Amendment rights of students in a public school, the U.S. Supreme Court famously ruled, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Today, forty-four years later, the Supreme Court has agreed to take two cases that may lead to a ruling on whether First Amendment rights must be shed at a business’s front door. The Court will hear arguments in the Spring of 2014, and a decision could come by the end of June.

Mennonites, Evangelical Christians plead their case

Hobby Lobby and Conestoga Wood Specialties are two of the for-profit businesses that have gone to court in an effort to overturn Obamacare’s mandate that all businesses offering health insurance to employees must help pay for coverage for abortion-inducing drugs, including those marketed as contraceptives. Strictly a Catholic concern? Hardly. The family that owns Hobby Lobby professes evangelical Christianity in the Protestant tradition, while the owners of Conestoga are Mennonites.

The Becket Fund, a public-interest law firm representing Hobby Lobby (Sebelius v. Hobby Lobby Stores, Inc.) issued a statement today in response to the Court’s decision to take the cases, reading in part:

“This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby. “We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens.”

In July, a lower federal court granted Hobby Lobby a preliminary injunction preventing the government from enforcing the HHS mandate requiring the family businesses to provide in the employee health insurance plan two drugs and two devices that are potentially life-terminating.

The Greens and their family businesses – who have no moral objection to providing 16 of the 20 FDA-approved contraceptives required under the HHS mandate and do so at no additional cost to employees under their self-insured health plan – then took the unusual step in October of joining the government in asking the U.S. Supreme Court to review the case, despite the family’s victory in the U.S. Tenth Circuit Court of Appeals.

The other case taken by the Court, Conestoga Wood Specialties v. Sebelius, comes from a different Circuit Court of Appeals than the Hobby Lobby case. The two cases were decided differently in lower courts, and now the Supreme Court will consider both at once.

“Accommodations” and questions

The HHS Mandate, part of the regulations accompanying Obamacare, raised religious liberty issues as soon as it was announced in early 2012. The Administration made what it called an “accommodation” with religious employers, with the definition of “religious employer” left to the federal government. When that proved insufficient to meet the concerns of Americans who take their religious liberty seriously, the Administration tweaked its “accommodations” further, until finally last June the Mandate was declared “final.”

As a result, lawsuits are abounding all over the country. Some have been filed by nonprofit organizations, some by educational institutions, some by entities affiliated with a church but legally distinct from it. Owners and managers in each case hold religious beliefs that conflict with the demands of the Mandate.

I can’t predict what questions will be asked during arguments before the Court. Some issues, though, will have to be decided eventually, either in these cases or one of the others now pending.

Does a religious liberty interest apply to an individual acting as owner of a business, as well as to an individual acting alone?

If the federal government calls a certain drug “contraceptive” when it is in fact abortifacient, will the First Amendment apply to an individual who recognizes that the government is acting in error?

Will the Court reach into the underpinning of the Mandate, and rule on the definition of contraception as “preventive care” under Obamacare?

The web site may be down, but the Mandate stands

Obamacare’s biggest roadblock to date has proven to be the inadequate web site that is interfering with signups for health insurance. Nothing about a lousy web site wipes out 15,000 pages of Obamacare regulations, including the Mandate.

According to the Becket Fund, there are 84 lawsuits challenging the constitutionality of the Mandate. It will take more than one Supreme Court decision to address them all. The first two cases have made it over a big hurdle, though. Stay tuned.