Busy day in Concord starts with end-of-life bill

End-of-life; smoothing the way for telemed abortions; making oral contraceptives available over the counter (and maybe undercutting the HHS mandate on the way); demanding transparency from insurers: welcome to Tuesday at the State House in Concord. Hearings will begin this morning on these bills.

HB 151:  establishing a committee to study end-of-life decisions

In 2013, Governor John Lynch vetoed a bill to set up a committee to study “end-of-life decisions.” The bill had originated as a straight-up assisted suicide bill before being amended into what the sponsor hoped would be a noncontroversial baby step forward. I noted at the time that Rep. Robert Rowe was not fooled. He spoke to his colleagues briefly and forcefully during the floor debate, saying “The total thrust of this bill is euthanasia.”

New session, new sponsor: House Bill 151 has been brought forward by Rep. Larry Phillips (D-Keene). The bill has no co-sponsors at this time. Rep. Phillips wants to commission six state representatives and one state senator to study end-of-life decisions, with the bill to become effective upon passage and a committee report due November 1.

The committee, should it be formed, would be tasked with (but not limited to) “investigating the positive and negative effects of legislation in states that have enacted aid in dying laws, innovation practices of other states, specifically Minnesota, Wisconsin, and California, how to encourage careful and responsible deliberation about this complex and emotional issue, and any other matter the committee deems relevant to its objective.

Rep. Rowe had it right in 2013. His words are just as apt now.

SB 36: making oral contraceptives available without a prescription

This one comes from Senator Andy Sanborn (R-Bedford). Interesting. I had two thoughts when I heard about this bill: Culturally, it’s wretched. Politically, it has one potential good effect: it could weaken the Obamacare contraceptive mandate.

If oral contraceptives are available without a prescription – behind the counter, under the terms of Sen. Sanborn’s bill, rather than over the counter – they won’t be covered under anyone’s health insurance prescription drug plan. Anyone wanting to consume an oral contraceptive would pay for it herself, or receive it under a Title X family planning subsidy. That’s how things stood before August 2012, when the creaking leviathan known as Obamacare began imposing what was then known as the HHS mandate.

Obamacare classifies suppression of female fertility as a public-health priority, to the extent of treating it as “preventive care.” We are all therefore mandated to pay for it in our health insurance plans, and most business owners are required to include it in any health insurance plan offered to employees, irrespective of religious beliefs about the immorality of contraception and abortion-inducing drugs. Remember, the Hobby Lobby case was very narrow. Many other Americans are still in court defending their right not to pay for someone else’s contraception.

If SB 36 were to pass, it wouldn’t affect shots or implants or IUDs. The contraceptive mandate would still exist, as long as there’s public policy in place that treats women’s fertility as something to be prevented. Title X would still exist, with tax-funded block grants going to states for “family planning” excluding surgical abortion.

I wonder what non-prescription birth control pills would mean for agencies like Planned Parenthood. Is it safe to assume that the cost of the drugs would go down, if they were available without prescription? Would the agencies pass on those savings to clients? Would they not need quite so much Title X money to do the same job they’re doing now? Or would the agencies shift to a medical model relying more on implanted drugs, keeping the mandate as a cash cow?

Let’s see who shows up to testify on this one.

SB 42: relative to employee notification of contraceptive coverage

If SB 42 passes, and if you’re an employer who offers health insurance as an employee benefit, you have to tell your employees about contraceptive coverage and what contraceptives might not be covered.

“Such notice shall be prominently displayed on the face of any written application for employment …[and] where such employer maintains a publicly accessible Internet webpage that provides information on prospective employment opportunities, the employer shall provide clear and conspicuous notice on the webpage as to whether the employer provides contraceptive coverage and, if so, whether such coverage includes some, but not all, contraceptive drugs and devices or their generic equivalent approved by the FDA.”

Fine. We’ll inch toward transparency in our insurance policies even if we have to rely on Hobby Lobby opponents to do it. This bill is sponsored by Senators David Pierce (D-Lebanon) and Martha Fuller Clark (D-Portsmouth), who are fuming at the very narrow victory won at the Supreme Court by the owners of Hobby Lobby, who objected to covering four out of the twenty methods of FDA-approved contraception.

Of course, transparency isn’t the sponsors’ goal here. It’s simply a means to a couple of ends. One end is to embarrass employers who would rather stay out of their employees’ sex lives. Another is to make abortion and birth control indistinguishable and equally desirable under public policy. The owners of Hobby Lobby objected only to helping provide four methods of “birth control” that are known to induce abortions. The Supreme Court OK’d that narrow exception for that one type of business (closely-held). That’s apparently going too far, in the eyes of Senators Pierce and Clark.

SB 84, relative to the definition of “telemedicine”

Telemedicine – the use of electronic media like video conferencing for the purpose of diagnosis, consultation or treatment – is going to be extraordinarily valuable. It holds great promise for mental health treatment, among other things, and mental health treatment was the focus of a New Hampshire study committee on telemedicine. SB 84 has been drafted in the wake of the committee’s recommendations.

A New Hampshire telemedicine law will be just as useful for abortion providers who have been impatient to start dispensing abortion-inducing pills remotely. Telemed abortions are already being done elsewhere in the country. It’s neither good medicine nor good social policy to suppress telemedicine simply because abortion providers want to use it. As with SB 36, though, it’ll be interesting to see who testifies on this one.


Activists of the year, and other 2014 highlights

It’s my good fortune as a pro-life blogger to meet amazing and inspirational people in the course of my travels throughout New Hampshire. With gratitude, I recognize a few of them here, along with some notable 2014 happenings.

Activists of the year: the “buffer zone” challengers

Honorable mention: the family of Griffin Donald Kenison

Honorable mention: NH’s 40 Days for Life teams

The buffer zone challengers

The ill-advised passage of a law to nullify the First Amendment within “up to 25 feet” of New Hampshire abortion facilities – with the precise perimeter to be left up to the discretion of abortion providers – forced pro-life citizens to turn to the courts for relief. Seven people, represented by pro-life and pro-First-Amendment attorneys, are taking up the challenge.

Michael Tierney (facebook.com photo)
Michael Tierney (facebook.com photo)

For the third year in a row, Manchester attorney Michael Tierney has made his way onto my end-of-the-year highlight reel. This year, he is representing the seven plaintiffs in Reddy v. Foster, seeking to have the “buffer zone” law overturned. Tierney, along with attorneys Michael DePrimo and Mark Rienzi, is working with Alliance Defending Freedom to vindicate the First Amendment rights of peaceful pro-life witnesses outside abortion facilities.

Each plaintiff is exceptional, quite independent of this court case. All other gifts and callings to one side, though, they are committed to the dignity of every pregnant woman and preborn child. They have courage to live out that message in prayer on the abortion facilities’ sidewalks. They have the guts to challenge the state government, which includes a governor, attorney general, fourteen senators and 162 House members who ought to be ashamed of themselves. The plaintiffs are Sister Mary Rose Reddy, Sue Clifton, Jennifer Robidoux, Joan Espinola, Terry Barnum, Jackie Pelletier, and Betty Buzzell.

A lie was repeated over and over during testimony in support of the now-challenged law: any pro-life presence outside an abortion facility is in itself an act of violence, no different in nature than a physical assault on abortion-minded women and abortion workers. Nothing short of a buffer zone law could protect “safety and balance,” as sponsor Sen. Donna Soucy calmly intoned at each hearing. The U.S. Supreme Court rejected that claim when in June it threw out the Massachusetts law on which the New Hampshire law was based, saying that when less-restrictive laws have not yet been enforced outside abortion facilities (laws like disorderly conduct, for example), nullification of the First Amendment cannot be tolerated. Governor Maggie Hassan signed New Hampshire’s law after the Supreme Court decision, underscoring the radical pro-abortion extremism that animated the law’s supporters.

The seven challengers to the law are quietly putting extremists on notice: peaceful pro-life witness is here to stay.

The Kenison and Rideout families

The efforts by the family of little Griffin Kenison to get fetal homicide legislation enacted were nothing short of awesome.

Rep. Leon Rideout (facebook.com/rideout4rep)
Rep. Leon Rideout (facebook.com/rideout4rep)

When a woman loses a wanted pregnancy because of the actions of a negligent or impaired driver, or an abusive partner, or any other kind of assault, must the preborn child’s assailant answer to the community via criminal law? More than three dozen states say yes, in the form of fetal homicide laws. Those laws, the provisions of which vary somewhat from state to state, call for charges not only for injury of death to the woman, but for the death of her preborn child as well.

New Hampshire is not one of those states. Several times in the past twenty years, fetal homicide legislation has been introduced in Concord. It came close to passage in 2012, falling to a veto by then-Governor John Lynch. This year, another bill was introduced. This time, it was personal: Rep. Leon Rideout of Lancaster called his bill “Griffin’s Law” in honor of his grandson. Rideout’s daughter Ashlyn was 7½ months pregnant when an automobile collision forced her child’s premature delivery. The child, Griffin, could not survive his injuries sustained in the collision. The driver responsible for the collision faced no charge in the child’s death.

Griffin’s extended family trooped down to Concord from New Hampshire’s North Country for hearings and floor votes. They wore t-shirts and distributed ribbons in Griffin’s honor. Griffin’s parents, Ashlyn Rideout and Daniel Kenison, sat quietly with Ashlyn’s mother Cora and listened as Rep. Rideout testified. Grandmother Shirley Kenison Ward delivered powerful, memorable testimony. I don’t have all the names of the family members who were there, but I honor each one of those people who came to remember Griffin. They came from a distance, taking time off work, speaking volumes with their very presence.

Those voices fell on too many ears attuned to the testimony of abortion advocates. This is not an abortion bill. It refers only to wanted pregnancies. One might think that being pro-choice would include respecting a woman’s choice to carry a child to term. Not really, apparently. Abortion advocates perceive threats to Roe v. Wade where none exist – extremism warps one’s view – and they fought Griffin’s Law, saying that recognizing Griffin as a child would somehow compromise abortion rights. The legislative class of 2012 was amenable to that nonsense.

The legislators elected in 2014 have a chance to rectify things. Griffin’s Law is back for 2015, once again sponsored by Rep. Rideout. The makeup of the legislature has changed. Governor Hassan just might find this one on her desk. It’ll be foolish to bet against a fetal homicide law if the Kenisons and Rideouts persist in what grandmother Shirley called “a crusade.”

The 40 Days for Life teams

40DFL volunteers in Greenland, NH
40DFL volunteers in Greenland, NH

Dianne Braley in Greenland and Jennifer Robidoux in Manchester led 40 Days for Life campaigns this year. There’s no question in my mind that the push for the buffer zone law had a chilling effect on pro-life witness in our state. These women went ahead in faith anyway, each bringing together a supportive leadership team to see the campaigns through. (Yes, that’s the same Jennifer Robidoux who’s a plaintiff in the buffer zone suit.)

In a political atmosphere of pronounced hostility to peaceful pro-life witness, Dianne and Jen simply went about their business of recruiting people to stand outside Planned Parenthood or the Lovering abortion facility to pray for an hour at a time. The threefold mission of 40DFL is prayer and fasting, peaceful vigil, and community outreach, and New Hampshire’s teams did their best to carry those out in a year when abortion advocates came close to banning legal, peaceful, non-obstructive demonstration where abortions are done. In the face of this atmosphere and the excessive caution it provoked in some circles, Dianne and Jen remained true to 40DFL’s mission and commitment. Their teams deserve just as much credit.

Most unexpected pro-life victory

From www.supremecourt.gov
From www.supremecourt.gov

Who expects anything constructive from the U.S. Supreme Court nowadays? One always hopes, of course – but expectation, not so much.

Imagine my surprise when not one but two major decisions came down on the pro-life side. In McCullen v. Coakley, the Court rejected Massachusetts’ buffer zone law on a narrow basis: since existing laws hadn’t yet been used against pro-life witnesses, it was inappropriate to pass a new law with the drastic effect of squelching First Amendment rights. Massachusetts has since passed a new buffer zone law, in line with the Court’s warning.

And then there’s the Hobby Lobby decision. The McCullen decision was received fairly quietly by abortion advocates, mostly because they were still screaming over Hobby Lobby. It’s official: owners of a privately-held company who have religious objections to certain forms of “contraception” – in this case, abortion-triggering drugs and devices – may not be compelled to help pay for or provide those devices to employees. It was an extremely narrow ruling, but it upheld the religious liberty of the owners of Hobby Lobby.Take that, Obamacare.

Abortion advocates went into overdrive, and in the process they abandoned any pretense of believing that abortion is different from birth control (which has implications for future legislation and litigation on abortion funding). “#notmybossbusiness” became the hashtag of the day, as extremists as usual seized the PR advantage over defenders of religious liberty. They claimed that any boss who refuses to violate her conscience by providing employee insurance coverage for abortifacients is actually making medical decisions for the employee. The abortion advocates are concerned about the other Obamacare lawsuits in the pipeline from other entities, including religious institutions and publicly-traded companies.

Conscience rights? Still under assault.

Best decision by a candidate

Karen Testerman: "Life is not an issue; it's a fundamental principle. There should be no question about it."
Karen Testerman at Women for Bob Smith rally: “Life is not an issue; it’s a fundamental principle. There should be no question about it.”

Karen Testerman wanted to be the GOP nominee for U.S. Senate. She started early, campaigned hard within the conservative base, and brought her message to GOP committees statewide. Former Senator Bob Smith was in the race as well, with eighteen years of Senate seniority in his back pocket and a long record of pro-life votes in Washington. In an act both savvy and gracious – two things that often go by the boards in campaign season – Karen decided to bow out in favor of Sen. Smith. She didn’t just drop out of the race and go home. She declared her support for Smith very publicly, standing with him in the State House. She campaigned as tirelessly for him as she had for herself. She was determined not to split the pro-life vote.

We all know the epilogue: Scott Brown entered the race, bolstered by legacy Republicans. The self-proclaimed pro-choicer Brown managed a hair under 50% in the nine-way GOP primary. Sen. Smith earned 23%, far more than most pundits expected. Brown went on to lose to incumbent Sen. Jeanne Shaheen. But this isn’t about “worst decisions by a candidate,” so let’s move on.

Most encouraging election result

The New Hampshire House lost a lot of its abortion supporters and assisted-suicide advocates in November. That’s a net win for the people of New Hampshire, even with newly-elected reps who are keeping their life-issue inclinations to themselves for now.

NH pro-life event & speaker of the year

Julia Holcomb, Silent No More
Julia Holcomb, Silent No More

A most subjective category, to be sure – but can anyone seriously challenge Julia Holcomb of Silent No More as the most compelling speaker at any New Hampshire event this year? New Hampshire Right to Life’s annual banquet was the venue for an exceptional evening. Holcomb’s story of being coerced into a late-term saline abortion at age 17 is unforgettable. As I wrote at the time, “It’s tough to take phrases like ‘choice’ and ‘reproductive justice’ seriously after hearing from Julia Holcomb. Slogans fade away in the face of a woman speaking with such courage and honesty.”

Honorable mention: The rally for life organized by Women for Bob Smith brought together candidates for local, state and federal offices, some of whom had little to no name recognition among pro-life voters until they spoke that day on the State House plaza. Andrew Hemingway, GOP primary candidate for governor, summed it up in his remarks about the right to life: “Is there any other greater cause? No. This is it. The pinnacle. You must take the energy from this day and move this cause forward.” Move the cause forward. With encouragement and inspiration like this, why not?

Tales from the crypt: here comes the ERA (again)

“They could not have made the Hobby Lobby ruling with an ERA.” — Rep. Carolyn Maloney

“One way or another, I’m gonna get ya, get ya, get ya … ” — Blondie via Debbie Harry/Nigel Harrison

Comes now the Associated Press by way of the Concord Monitor advising readers about the resurrection of the Equal Rights Amendment. What’s the impetus for this? The Hobby Lobby decision. You know, the one that said the government could not compel the owners of closely-held companies to provide no-co-pay contraception and abortion-inducing drugs in employee health insurance plans.

Do not adjust your sets. The women quoted in the article are dead serious in believing that the U.S. Constitution needs to guarantee that every woman has the right to be rendered infertile on the taxpayer’s dime. Your choice, my cash. We’ve come a long way from The Federalist Papers. For that matter, we’ve come a long way from when suffragist and abortion opponent Alice Paul first proposed an ERA in 1923.

Bad idea. Very bad. It sounds wonderful at first blush; as a teenager in the 1970s, I was a huge fan of the ERA. Then I started listening to its biggest boosters, and most of them had something in common: they wanted to use an ERA to promote abortion. And this was when Roe was brand spankin’ new. Whole vistas have opened up since then on the political meaning of “reproductive freedom.” Now the free-pills crowd is all-in with abortion advocates, as if they were ever separated.

This is such a lousy idea, in fact, that I half suspect some New Hampshire abortion advocates would love to promote it via a resolution in the next House session in Concord. Now there’s something to ask your candidates about.

A lot of women and men who have come of age since the ’80s might know the ERA only as from paragraph in some history book. Time for a review.

The plain language of the amendment, and how ratification failed

The Associated Press article cited above manages to run to a thousand or so words without giving the language of the ERA as considered by the states during the 1970s ratification process. Deceptively simple: Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. A new version might have “gender” for “sex.”

The original ERA passed Congress in 1972. It then went to the states for ratification, as required for all constitutional amendments, with a deadline of March 22, 1979. Thirty-eight states were needed for ratification. By the end of 1977, 35 states had ratified, but at that point the effort stalled. To complicate matters further – and to the ongoing rage of ERA supporters – five states rescinded their ratifications before the 1979 deadline. With ratification by 1979 looking impossible, Congress voted to extend the deadline to June 30, 1982. That stunt didn’t help. The deadline came and went with no more states OK’ing the measure, and the ERA died.

Reasons for opposing the measure varied. One critical and persuasive point of opposition was the ERA-abortion connection, dismissed by ERA supporters as a “lie.”

Abortion advocates are nothing if not persistent, and the 98th Congress led in 1983 by Speaker Tip O’Neill tried passing the ERA yet again, in the hope of re-starting the ratification clock. The following November, the House killed it. My file of yellowed clippings from the those days stands in place of web links; the National Catholic Reporter (11/15/83) summarized the outcome thus: “The abortion issue killed the equal rights amendment in a bitterly divided House of Representatives last week.”

How an ERA would have promoted public funding of abortion, and how it might make a contraceptive mandate permanent

Congressman Henry Hyde (R-IL) testified about the abortion and the ERA at a U.S. Senate Judiciary subcommittee hearing in May 1983. His testimony was reproduced in full in the summer 1983 issue of Human Life Review (pp.81-88). (Yes, this is Hyde as in “the Hyde Amendment,” a measure that limits funding for some abortions.) His remarks happened to mention Ruth Bader Ginsburg – now Justice Ginsburg, who in 2014 excoriated the five Supreme Court colleagues who invalidated one application of the contraceptive mandate in the Hobby Lobby cases. From the congressman’s testimony:

One important source of evidence about how the ERA would be interpreted is litigation under the state Equal Rights Amendments in various state constitutions. In several recent controversies involving state ERA’s, it has become clear that the pro-abortion movement regards ERA as a valuable tool in the fight against abortion funding restrictions.

In the 1978 case of Hawaii Right to Life v. Chang, a group of doctors argued that they had a constitutional right to be paid for abortions with state funds….In the 1980 case of Moe v. King, the Massachusetts affiliate of the ACLU urged that state’s highest court to hold that: ‘By singling out for special treatment and effectively excluding from coverage an operation which is unique to women, while including without comparable limitations a wide range of other operations, including those which are unique to men, the statutes constitute discrimination on the basis of sex, in violation of the Massachuasetts Equal Rights Amendment.’ In the 1983 Pennsylvania case of Fischer, Planned Parenthood et al. v. Department of Public Welfare, the American Civil Liberties Foundation of Pennsylvania argued that it is unconstitutional under the Pennsylvania State ERA to deny state tax funds for abortions because: ‘Pregnancy is unique to women. [A statute] which expressly den[ies] benefits for health problems arising out of pregnancy, discriminates against women recipients because of their sex … and the regulations issued pursuant thereto constitute a gender-based classification in violation of the Pennsylvania Equal Rights Amendment.’

Hyde acknowledged that those cases were decided on other grounds, “albeit favorably to abortion funding.” He found them instructive nonetheless because of the way the state ERAs elevated sex to a “suspect classification” under law. Hyde warned that if such a “suspect classification” were to be given weight in the federal constitution, not only abortion-funding limitations but conscience protections for pro-life health care professionals would be unconstitutional.

Imagine the Obamacare contraceptive mandate under such a constitutional provision. Goodbye, religious liberty protections for anyone refusing to pay for someone else’s pills.

Justice Ginsburg showed her form early

Hyde’s testimony referred to legal scholars who asserted that the ERA would strike down all laws discriminating against “pregnancy-related disabilities.” According to those authorities, said Hyde,

…the Supreme Court’s ‘right to privacy’ may be sufficient to secure a right to abortion, but if the ERA is ratified the ‘right to privacy’ will no longer be necessary as a basis for abortion-related constitutional claims. Indeed, the ERA will then provide a basis for striking down all laws that discriminate against ‘pregnancy-related disabilities’ – the most important of which are the abortion-funding restrictions and other abortion regulations that have survived challenges based on the ‘right to privacy.’

Among the lawyers [taking this view] was Ruth Bader Ginsburg, who was then a preeminent legal scholar of the ERA movement and who is now a Federal judge. This is significant not only because it shows that the ERA movement’s scholars and advocates are virtually unanimous in their belief that ERA will ban ‘pregnancy-related’ discrimination, but also because it reminds us of who will be interpreting the ERA. [emphasis added]

it would be especially tragic if legislators who do wish to minimize the killing of unborn children were to give pro-abortion lawyers and pro-abortion judges a new and powerful tool with which to enhance and extend the abortion right, especially by mandating the use of tax funds to pay for abortions.

Justice Ginsburg is now on the Supreme Court, writing passionately for a four-member Court minority in favor of unrestricted funding of contraceptives and abortion-inducing drugs, even if that means compelling a business owner to act against religious beliefs and conscience. One vote away from a majority, even without a new ERA. With a new ERA, Justice Ginsburg would have the figurative weapon she’d need to beat a colleague or two into submission. She only needs one.

The acid test: how will ERA proponents welcome “funding-neutral” language?

Another instructive contemporary essay on the ERA and abortion funding came in 1984 from Paige Comstock Cunningham, at that time general counsel and executive director of Americans United for Life, and Douglas Johnson of the National Right to Life Committee. In “ERA and Abortion: Really Separate Issues?” they discussed the conflict between ERA advocates who called an abortion link a red herring while at the same time cheering the use of state ERAs to strike down limits on abortion funding.

Over a year ago [early 1980s], the National Right to Life Committee and other pro-life groups proposed a simple means for definitively separating the ERA and abortion issues: an amendment to the text of ERA to read ‘Nothing in this article [the era] shall be construed to grant or secure any right relating to abortion or the funding thereof.’ …Nevertheless, pro-ERA advocacy groups have vehemently rejected the abortion-neutralization amendment. …[National Organization for Women] President Judy Goldsmith’s response was immediate and forceful: ‘We will support nothing but a clean [unrevised] ERA.’

In case you thought “war on women” was an original idea by free-pill partisans, Cunningham and Johnson reminded readers of the 1980s analogue: “gender gap.”

If ERA is really intended primarily as an ‘economic equity’ measure, as NOW and other proponents say, then it is difficult to understand why they will not accept the abortion-neutralization amendment. It might not be too cynical to suggest that some feminist leaders, and some politicians, may really prefer to have ERA stalled in Congress during this election year [1984],  thereby enhancing its usefulness as a ‘gender gap’ issue and as a focal point for political fund-raising efforts.

(You remember the 1984 election. That’s the one that saw Ronald Reagan elected to a second term.)

So how would supporters of a new ERA respond to language ensuring that the measure didn’t guarantee unlimited public funding of abortion and contraception? Let’s go back to Congresswoman Carolyn Maloney.


Congresswoman Maloney, June 2014: “They could not have made the Hobby Lobby ruling with an ERA.”

So get that out front now. We’re not talking about women’s equality or dignity; remember, one of the owners of Hobby Lobby is Barbara Green, a woman, whose conscience rights Justice Ginsburg was only too eager to abridge. We’re not talking about women’s economic development; take a look at Title X contracts for assurance that low-income women have access to contraception. We’re not talking about freedom of choice; women choosing to reject the mandate have to go to court to vindicate their rights, and they have no assurance of victory.

Today’s ERA, if Congresswoman Maloney is to be believed, is about enshrining a policy that women’s infertility is such an imperative that no one, no one, can opt out of paying for it, even on religious grounds.

Too bad the ERA as imagined by Alice Paul in 1924 was hijacked a long time ago by politicians who view the rights to life and religious liberty as some kind of obstacle to progress. When I was in high school in the 1970s and first heard of the ERA, it sounded so wonderful. I was for it.

And then I grew up.

So much noise, so little substance: life after Hobby Lobby

One hates to be the skunk at the garden party, but that’s the position in which I find myself. The Supreme Court’s Hobby Lobby decision was a relief. That’s it. It isn’t worth having a party over. I wish it were.

The Twitterverse would have you believe otherwise. So would the flood of advocacy emails now filling my email inbox. One side thinks the decision is a terrible danger to women (though not to female business owners, somehow). The other side says it’s a smackdown to Obamacare, a ringing affirmation of the First Amendment, and an all-around win for the forces of truth and justice.

All this fuss and bother, just because five Justices (and only five) agreed that a boss in a closely-held private company may not be compelled to help pay for or procure an employee’s abortion-inducing “birth control.” This is a limited decision – appallingly limited.

Let’s all settle down and read the decision, shall we? As usual with end-of-term Supreme Court decisions, this issue is too important to leave to the lawyers.

What the Court’s majority said:

  • This is no landmark First Amendment case. This decision is based on two statutes: the Religious Freedom Restoration Act of 1993 and a follow-up law, RLUIPA, that Congress passed in 2000.
  • “Our responsibility is to enforce RFRA as written, and under the standard that RFRA prescribes, the HHS contraceptive mandate is unlawful.” (Justice Alito writing for the majority)
  • “Our decision on that statutory question makes it unnecessary to reach the First Amendment claim raised by Conestoga and the Hahns [other parties to the case].” (Emphasis added.)
  • “By enacting RFRA, Congress went far beyond what this Court has [earlier] held is constitutionally required.”
  • Corporations have the same rights as individual persons for purposes of protection under RFRA. “[P]rotecting the free-exercise rights of corporations like Hobby Lobby, Conestoga , and Mardel protects the religious liberty of the humans who own and control those companies.”
  • RFRA means that if the federal government has a compelling interest in a policy, and that policy raises religious-liberty issues for someone, the government must use the “least restrictive means” of furthering its interest. In the Hobby Lobby cases, the government has failed to show that the contraceptive mandate is the least restrictive way of promoting its interest in giving women “cost-free” access to the four contraceptive methods to which the owners of Hobby Lobby have religious objections.
  • “We will assume that the interest in guaranteeing cost-free access … is compelling within the meaning of RFRA…”
  • This decision does not apply to publicly-traded corporations or to nonprofits.
  • The federal government can pay for contraception without having to involve employers.

What the majority did not say:

The majority did not address the issue of whether the federal government is correct in making a public-health priority out of the suppression of women’s fertility. It did not give a blanket exemption to anyone who has religious objections to contraception and abortion. It addressed the plaintiff’s concerns over four particular abortifacient drugs and devices without addressing potential objections to other forms of birth control. It did not say the government has no business meddling in birth control (quite the contrary, in fact). It did not hold out hope that the Hobby Lobby reasoning would apply to larger, publicly-held corporations. It did not recognize that the mandate’s “accommodations” to religious entities are a joke. Maybe that will have to wait for the Little Sisters of the Poor case.

Justice Samuel Alito wrote the majority decision, joined by Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas.

What the minority said:

Justice Ruth Bader Ginsburg wrote a strong dissent, joined by Justices Sotomayor, Breyer and Kagan. That’s four, which is one vote away from five. Think about that as you consider who you want in the U.S. Senate, voting on confirmation of the next nominees to the Court.

Unlike the majority, Ginsburg was willing to bring the First Amendment right into the middle of the discussion, so that she could give it a clear dismissal. She calls the companies’ Constitution-based Free Exercise claims not tenable, where Alito considered them merely irrelevant (relying instead on RFRA).

“The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the [Affordable Care Act] would otherwise secure. …In sum, with respect to free exercise claims no less than free speech claims, ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ … I would confine religious exemptions under [RFRA] to organizations formed ‘for a religious purpose,’ ‘engaged primarily in carrying out that religious purpose,’ and not ‘engaged …substantially in the exchange of goods and services for money beyond nominal amounts.’” [Emphasis added.]

Enough for today, but watch out for future mandate cases

Much remains to be said, but for now, all I can conclude is that the decision could have been much, much worse. Dozens of more challenges to the mandate are in the federal courts now. Some are from for-profit companies. Many more are from non-profits that the Supreme Court might or might not decide are “religious” enough. Let’s hope Justice Ginsburg doesn’t write for the majority when those cases are decided.

Why sue over the mandate?

With three days to go until the Supreme Court announces its decision in the Hobby Lobby & Conestoga Wood Products cases, time for a review: why even bother to sue the federal government over Obamacare’s contraceptive mandate at all? Why not just go along?

CAM00569Because religious liberty matters. It’s not simply a matter of worship, taking place in a building once a week. The mandate forces the question of how Americans may exercise their beliefs in everyday life. If an American holds the religiously-based belief that contraception and abortion are immoral, can that American be forced to pay for them? How about a business owner who wants to provide employees with health insurance, but on religious grounds wants no part of helping fund contraception and abortion as “preventive care”?

Two years ago, the Catholic bishops of the United States filed twelve lawsuits challenging the mandate. Mary Ann Glendon in 2012 wrote Why the Bishops are Suing the Government, published in the Wall Street Journal. The issues she described then are still unsettled today.

The main goal of the mandate is not, as HHS claimed, to protect women’s health. It is rather a move to conscript religious organizations into a political agenda, forcing them to facilitate and fund services that violate their beliefs, within their own institutions. The media have implied all along that the dispute is mainly of concern to a Catholic minority with peculiar views about human sexuality. But religious leaders of all faiths have been quick to see that what is involved is a flagrant violation of religious freedom. That’s why former Arkansas Gov. Mike Huckabee, a Baptist minister, declared, ‘We’re all Catholics now.'”

How about people with religious beliefs who don’t work for a religious organization? That’s where Hobby Lobby and Conestoga Wood Products come in. Those are two companies that don’t qualify in any way for the Obama Administration’s “accommodations” on the mandate. They’re secular businesses. The owners reluctantly filed suit against the mandate, because there seems to be no room under Obamacare for them to provide health insurance for their employees while having their own religious beliefs respected.

Religious liberty, or mere freedom to worship? The First Amendment’s free speech guarantee got a very qualified endorsement by the Supreme Court in the recent buffer zone case. Let’s see how narrowly another aspect of the Amendment is viewed by the Court on Monday.