Supreme Court Takes Up New Religious Challenge To The Affordable Care Act

240px-HobbyLobbyStowOhioSupreme CourtIn what seems destined to be a blockbuster decision in the making, the Supreme Court has accepted a religious challenge to the Affordable Care Act. The decision could force a reexamination of the Court controversial 2010 ruling in Citizens United in considering whether companies have religious rights to match the speech rights embraced by the Court. The case involves objections from businesses and individuals like David Green, founder and CEO of Hobby Lobby, who insist that the Act’s required support for contraceptive services violates religious rights. Two cases were accepted: Sebelius v. Hobby Lobby Stores, Inc. (13-354); and Conestoga Wood Specialties Corp. v. Sebelius (13-356). I will be discussing the cases this morning on CNN.


Under the ACA, non-for-profit religious corporation have an exemption. However, this is a for-profit company that is run according to the family’s religious beliefs. As a large employer, Hobby Lobby is required to provide a range of no-copay contraceptive services. Some 50 companies have challenged the ACA around the country.

Green says that “We do everything we possibly can to be a help to our employees of how that they can structure their life based on biblical principles.” While he does not object to all aspects of the required services, he believes that the government should not dictate such matters to companies. That argument succeeded in Denver with the United States Court of Appeals for the Tenth Circuit. The court ruled that there is no reason why corporations enjoy speech rights under the first amendment but not religious rights.

The decision created a classic split in the circuits. In Hobby Lobby v. Sebelius, the 10th Circuit treated corporations as persons for the purposes of the Religious Freedom Restoration Act and Free Exercise Clause. However, in Conestoga Wood v. Sebelius, the Third Circuit ruled that they are not persons for these purposes since corporations do not engage in religious practices or prayer and RFRA does not apply to corporations.

The case could challenge the 5-4 majority of Citizens United, particularly with Justice Anthony Kennedy. There is a sticker shock aspect to the case in terms of its potential if companies can make such religious objections to uniform national regulations. The decision could also shed light on the Court’s view of growing conflicts between non-discrimination laws and religious believes, a subject that I have previously written about in columns and blogs. If corporations can refuse to comply with the ACA on religious grounds, can a bakery refuse to prepare a cake for a same-sex couple on the same grounds? It will also likely interpret the scope and application of the Religious Freedom Restoration Act.

The case places the interests in a uniformity of services for women against the religious rights of certain companies. Green notably does not object to 16 of 20 preventive contraceptives required in the mandate but refuses to provide or pay for four of the drugs including Plan B and Ella — or morning-after pills and the week-after pills. His highly specific objection could be used by the Administration to show the implications of recognizing religious rights in companies with every company applying different standards and preconditions for employees.

This has the makings of a major decision that could not only interpret the scope of the ACA but more generally applicable religious rights for companies.

81 thoughts on “Supreme Court Takes Up New Religious Challenge To The Affordable Care Act

  1. The question whether corporations ought to be treated as individuals with a right to religious liberty has grabbed attention, but a preliminary question is whether the health care law actually forces employers—corporate or not–to act contrary to their consciences.

    Employers may comply with the law by choosing either of two options: (1) provide qualifying health insurance plans or (2) do not provide such plans and instead pay assessments to the government. Unless one supposes that the employers’ religions forbid payments of money to the government, the law does not compel them to act contrary to their beliefs. Problem solved.

    Some nonetheless have continued clamoring for an exemption from the law, complaining that by paying assessments to the government they would indirectly be paying for the very things they opposed. They seemingly missed that that is not a moral dilemma justifying an exemption to avoid being forced to act contrary to one’s beliefs, but rather is a gripe common to many taxpayers–who don’t much like paying taxes and who object to this or that action the government may take with the benefit of “their” tax dollars. Should each of us be exempted from paying our taxes so we aren’t thereby “forced” to pay for making war, providing health care, teaching evolution, or whatever else each of us may consider wrong or even immoral?

    In any event, those complaining made enough of a stink that the government relented and announced that religious employers would be free to provide health plans with provisions to their liking (yay!) and not be required to pay the assessments otherwise required (yay!). Problem solved–again, even more.

    Nonetheless, some continue to complain, fretting that somehow the services they dislike will get paid for and somehow they will be complicit in that. They argue that if insurers or employees pay for such services, those costs will somehow, someday be passed on to the employers in the form of demands for higher insurance premiums or higher wages. They evidently believe that when they spend a dollar and it thus becomes the property of others, they nonetheless should have some say in how others later spend that dollar. One can only wonder how it would work if all of us could tag “our” dollars this way and control their subsequent use.

    In commentary on the various options of employers, the National Catholic Bioethics Center acknowledges, albeit grudgingly, that the option of not providing health insurance and instead paying assessments is “morally sound.” While also considering this option “unfortunate” in that the insurance employees would find on their own would include coverage the Center deems objectionable, the Center concludes that the employers’ “moral connection” to that coverage would be “remote.” https://ncbcenter.org/document.doc?id=450&erid=194821

    Bottom line: Notwithstanding all the arm waving about religious liberty, employers are not forced by the law to act contrary to their consciences. Rather, the law affords complaining employers the option of not providing such insurance and paying assessments instead. Employers seeking exemption from the law aim not for religious liberty for themselves (they already have that), but rather for power over their employees, enabling them to limit their employees’ choices to those conforming to the employers’ religious beliefs.

    • raffkaw, I quite agree since davidm seems to think that forming a corporation is like registering a birth certificate. While it is as easy as doing that, he overlooks the FACT, that it is the state that grants that right to form a legal entity. It is not a force of nature as births are. In some cases,corporations have been denied incorporation or have had their charters revoked. The state cannot revoke a birth certificate unless it was fraudulent. Just ask Frank Lorenzo how his attempt to form a new airline worked out. When he went to court to get his certificate granted, the judge not only told him NO, but HELL NO!

      • randyjet wrote: “davidm seems to think that forming a corporation is like registering a birth certificate. While it is as easy as doing that, he overlooks the FACT, that it is the state that grants that right to form a legal entity. It is not a force of nature as births are.”

        You conflate some concepts here. A birth is a force of nature as you say, but the registration of that birth with the State is not. The principle of the right of association to form a corporation is a natural right as well, but the registration of that association as a corporation with the State is not.

        The truth is that I can form a corporation whether or not the State chooses to recognize and protect the rights of the public in regards to that corporation. I can form a simple association and choose only to register a fictitious name with the State. Or I can just operate as a sole proprietor. The fact that the State provides a method for me to register my corporation with the State is beneficial to the public and results in more taxes to the State. If the State disallowed it, I would still exercise my right to association without the State’s acknowledgement, just as I would still reproduce and have children if the State disallowed registering birth certificates.

        randyjet wrote: “Just ask Frank Lorenzo how his attempt to form a new airline worked out. When he went to court to get his certificate granted, the judge not only told him NO, but HELL NO!”

        Exactly what corporation are you talking about? Asking for a license from the Department of Transportation to operate an Airline is not the same thing as registering a corporation. What corporation did he attempt to register and was turned down?

  2. Here’s why any such discussion with David on this, or a host of other matters is a fool’s errand:

    From a David posting further up the thread “It is part of my political philosophy that government never should force employers to provide any kind of medical benefits. If an employer does provide medical benefits, it should be allowed to determine its own policy in such matters. If a company is run by a JW who views blood transfusions as wrong, or if a Christian Science owner does not believe in the medical profession at all and forgoes any kind of medical plan, then the employee should just buy the type of medical coverage they like from somebody else. Nobody is forcing the employees to do anything or prohibiting them from doing what they want. The employees can choose.”

    Religious belief and the unregulated interests of the capital class trumps all. It’s why there should be no minimum wage and ‘some people’s’ belief (that supports a like-minded religious belief) will trump scientific and medical knowledge and should be national political policy. You can fix stupid. You can’t fix a delusion so central to ones self identity that it has become intractable.

    Not abortifacients? Scientific studies? Accepted medical knowledge? So?

    • lottakatz wrote: “Religious belief and the unregulated interests of the capital class trumps all.”

      It is not the idea that religious beliefs trump all. It is the idea that LIBERTY trumps all. Government should have good compelling reasons for injecting itself into the lives of any individual.

      Remember that I am not religious, meaning that I am not a member of any religious group. Furthermore, I do not believe that all religious beliefs are equal. There are good religious beliefs (such as love your neighbor) and there are bad religious beliefs (such as Jihad). For me, the underlying motivation is LIBERTY FOR ALL, not religion.

  3. davidm2575:

    It is not categorized this way by the FDA, but because it is possible that these drugs might prevent implantation of a fertilized ovum, they are considered abortifacients by some people.

    Where’s your evidence? All I see here is an claim of a possibility of a might. The truth value of a belief must be supported by reason. Where are your reasons?

    • Nal wrote: “Where’s your evidence? All I see here is an claim of a possibility of a might. The truth value of a belief must be supported by reason. Where are your reasons?”

      The female reproductive cycle involves a complex system of hormone secretions and feedback response mechanisms. The steroids involved often have multiple effects. How these pills actually work is not fully understood, other than the fact that they mess with the normal female system for reproduction. The fact that they are not 100% effective is suggestive of our lack of knowledge and understanding in this area.

      If the emergency contraceptive (EC) is taken before ovulation, we can be pretty certain that it works by preventing ovulation by tricking the body into thinking that the time is not ready for ovulation. But what happens if the EC pill is taken when ovulation is imminent or has already happened? This is where a lot more speculation comes into play along with conflicting studies. Some studies indicate a thickening of mucus that might slow down the sperm, or some indicate effects upon the endometrium that inhibit implantation of the fertilized ovum. Other studies suggest otherwise.

      Until recently, the websites discussing these pills have included the concept of blocking implantation as one of the mechanisms by which the pill works. Now, the political climate has threatened the Obamacare guaranteed sale of these drugs by various lawsuits based upon this fact, so now the manufacturers have removed the information that said these pills may block implantation. You might have to use the WayBackMachine to retrieve this information. In many cases, these websites recently have put up stronger language to indicate the pills will not interfere with a pregnancy. Pregnancy, however, means an already implanted fertilized ovum to these manufacturers. For a pro-life person, pregnancy begins at conception, not implantation. Therefore, they work from different definitions in defining an abortifacient.

      Keep in mind that this distinction is not important for Roman Catholics who do not believe in any kind of contraception. Whether or not eggs are fertilized does not matter to them, and there are Roman Catholic business owners. This distinction only involves those who like Mr. Green who allow for methods of birth control that prevent fertilization but not for methods that would cause a fertilized ovum to be unable to implant on the uterus.

      For a more thorough analysis of how the pill works and the ethics involved, I recommend the following 2005 bioethics paper in pdf format that discusses the science aspects of the morning after pill.
      http://www.schb.org.uk/downloads/publications/morning-after_pill.pdf

      For a less rigorous analysis, following is a youtube that discusses how the normal non-emergency contraceptive pill can result in early abortions:

      • “For a pro-life person, pregnancy begins at conception, not implantation. ”
        Absent implantation the pregnancy cannot go forward so what would you suggest? A woman have to go through with the implantation? Maybe we could corral young of age women, and maybe not of age too as long as they have the mature equipment, and force implantation on them so these products of conception will become implanted? To say these pills ae forbidden because some people think a woman should be forced to have a pregnancy, even when the pregnancy has not yet happened, is the ultimate removal of liberty.

        • leejcaroll wrote: “To say these pills ae forbidden because some people think a woman should be forced to have a pregnancy, even when the pregnancy has not yet happened, is the ultimate removal of liberty.”

          Ultimate removal of liberty? Worse than throwing her in prison? A little hyperbole on your part I think. What happened to her liberty choice before the behavior that led to pregnancy?

          Nobody is forcing her to have a pregnancy. They are simply asking not to be required by law to be complicit in terminating the pregnancy. Let the pregnant girl get the pills she wants from the local government clinic rather than the employer’s health plan. Or let her buy them at any pharmacy with her own money. Is this really unreasonable in your view? It seems like a fair balance of interests from my perspective.

          • For some women pregnancy is a prison, they have to take to bed, they are sick for most of it, sometimes all, they are forced, if you folks have your way, to proceed ith a pregnancy they do want, that may have been forced upon them by a family member or rapist. So nice as a man you can see it as something that happens to a woman and is o big thing evidently.
            Before the pregnancy well let’s see no birth control is 100%, you don’t have a choice when you are raped, when your father or brother or uncle forces himself on you.
            Okay so the poor who cannot afford the medication, they will have to continue an unwated pregnancy. (Oh an by the way, the pregnancies that are unsustainable, a woman should have to carry it until the fetus dies inside of her I guess. She should be forced to deliver to term if it goes that loing a fetus that is incompatible with life because hey, its only a woman it really won’t affect her (ask my sister what effect terminating a pregnancy with a fetus so malformed they refused to even let her know the gender so she would have no fantasies about what it might have become because there is no way it would have done anything but die, if it even lived outside the womb, if it made it past the first 3 or so months because the deformities so severe it was incompatible with life.).
            It seems incompatible to me that you say let her get the pills from the government clinic since you as taxpayer help to subsidize that.
            There is no ‘complicit” in terminating a pregnancy that has not yet occurred but you are always so wedded to your position that you refuse to acknowledge you are not always right and in this caser. you sre not. They are not abortifacients. And by your reasoning your religious beliefs, the religious beliefs of a few should trump all else.

    • Annie wrote: “They are not an abortifacient.”

      It depends upon who you ask. It is not categorized this way by the FDA, but because it is possible that these drugs might prevent implantation of a fertilized ovum, they are considered abortifacients by some people.

  4. HC,
    Wipe the spittle off your chin. Misses the point. My point is there is no reason for an employer; any employer, to be dictating specific medications or specific medical procedures. That is a slippery slope. How about a Jehovah’s Witness employer not wanting to cover blood transfusions? Or Scientologist demanding that no psychiatric care be covered? Or an anti-vaxxer objecting to coverage of vaccinations.

    Those objecting to specific provisions in insurance coverage have multiple agendas. Some groups have one primary goal, others have other goals, but the one goal in common seems to be Republican efforts to cripple or dismember the Affordable Care Act. Following the advice of marketing expert Dr. Frank Luntz, they use bumper sticker slogans to sell their version of “freedom.” As we all know, freedom for one person may be oppression for another.

  5. “Nevertheless, some of your other comments indicate that you do not understand the objection of Hobby Lobby. They do not object to preventative methods of birth control. That is the position of the Roman Catholic Church, but not Hobby Lobby whose owners are not Roman Catholics. Hobby Lobby’s objection is to the abortifacients mandated by Obamacare.

    I think many of those commenting were ignorant of this, as evidenced by the frequent references to birth control. But when demonizing, its best not to let facts get in the way.

  6. Bonnie bleated :”It seems that the employer has no right to medical knowledge of his employees, particularly the women employees. Now, Hobby Lobby wants to get between a woman and her doctor and dictate that treatment be only in accordance with the employer’s religious beliefs. It becomes a case of Hobby Lobby’s owner trying to shove his religious doctrine down the throats of his employees. Whose religious freedom is being violated now?”

    (facepalm…….scratching head……)

    Ok, why would a woman work for a company, knowing they have a sense of propriety and moral convictions, and then expect them to fund their lifestyle of creating babies and then choosing to kill them before they are born strictly as a matter of convenience?

    Shoving religious doctrine down the throats of his employees??? Ok, let me see if I understand YOUR logic now. It’s perfectly fine for the government, or your president to force his morally reprehensible ideals down the throats of working America and REQUIRE THEM to fund healthcare that provides abortion pills?

    Pot. Kettle. Black.

  7. Otteray Scribe bleated: “What boggles my mind is these folks don’t want poor women to be able to prevent pregnancy. Then when they do get pregnant, they want to forbid termination of the unwanted pregnancy. At the same time, cut funding for prenatal care, and once the kid is born, no food stamps, health care or other social services. The child is terminally important right up until the moment of birth, then after birth, they are a “burden” and are “stealing” money out of the pockets of those who are well off. Jesus would be so proud.”

    Let me see if I understand your logic. Jesus would be proud if the government forced companies to pay for pills whose only purpose is to kill an unborn child? Sure, that makes perfect sense. :/

    I often consider cancelling my emails from this blog, but to read the comments of all these leftwing nut-jobs is comical.

    It appears you guys aren’t understanding what is going on here. Companies are taking obama and his wonderful (sarcasm) healthcare (when are abortion pills considered health CARE anyway, but that’s another topic all together) to court because they are requiring, by law, things that are forbidden. I know it’s hard to explain the value of an unborn child to a liberal but think of it this way – imagine the president required you to go out and kill endangered species or chop down trees, and if you didn’t do so, you would be fined some ridiculous amount every day and/or face criminal prosecution. Even though it was morally wrong (?) to you to chop down a tree, you were now required to by your wonderful president. Now, does that make sense? So understand why so many are calling foul at the very notion that companies must be required to do something that is morally wrong, reprehensible, disgusting, and wrong.

    Also consider that if the Supreme Court drops the ball yet again on this one and says the president can require companies to pay for abortion pills for example, they aren’t going to do it. They’ll close down before being forced to do something morally wrong. Take EWTN for example. They aren’t going to be forced to supply abortion pills to their employees, being predominately Catholic. So in effect, this will cause companies all over the US to shut down, thus forcing the economy even further down the crapper than it is now. Good job, mr. obama. (sarcasm)

  8. Hard to understand the asserted dimensions of the asserted religious right as applied to the Affordable Care Act.

    1. The “mandate” was ruled a tax. Persons who, on religious grounds, are conscientious objectors against war in any form must still pay their taxes, even though some of it is used to wage wars. Persons who, on religious grounds, refuse all medical intervention, still must contribute to Medicare, even though it offers medical treatment. Why is the financial obligation to purchase insurance which includes the objectionable portion any different? It really isn’t.

    2. The asserted right is not capable of rational administration. Conscientious objectors must prove their beliefs and that they apply to war in any form. How does one apply a similar litmus test to a corporation? Is it the view of all shareholders? Most shareholders? Officers and directors only? Suppose those are in conflict? How consistent must the views be held — e.g., must it prohibit contraception or abortion in all circumstances?

    3. In all events, what is the impact on alleged religious exercise? The corporation is not engaged in offering contraception or undergoing contraception. Is there a biblical prescription (I’ll admit I am not aware of one) that one must boycott insurance companies that pay physicians for services that include offering contraception?

    This alleged corporate religious “right” is all wrong as a basis to refuse to participate in health care plans.

    • Conscientious wrote: “Hard to understand the asserted dimensions of the asserted religious right as applied to the Affordable Care Act…”

      Well, conscientious, you are clearly missing the conscientious aspect to this whole situation. When a person forms a corporation, he has a vision concerning the kind of company he is forming. The company follows his vision. When the government steps in and starts mandating that the company make abortions available to his employees for free, and the government creates religious exceptions for a narrowly defined religious group that does not include his corporation, that creates an inequality. If the corporate officers had chosen to become priests, they would be exempt, but not if they just believe and follow the teachings of their religion? That makes no sense. The law is forcing corporation officers who are entrusted with establishing corporate policy to be immoral and unethical according to their religion. They put them in the position of either shutting down their corporation and following their conscience, or violating their conscience and leading the corporate policy in a direction they disagree with, causing their employees to behave in immoral and unethical ways. The law is suppose to allow freedom for people to live moral lives, not force them to lead immoral and unethical lives.

  9. david, randyjet was responding to your use of fetus. If he was incorrect in doing so, I apologize.

    There is a big difference between a “potential” person and an “actual” person.

    What is the birth control method that can be used 2 weeks after fertilization? There are herbs that can be used but they aren’t covered by insurance at all.

    • bettykath wrote: “randyjet was responding to your use of fetus. If he was incorrect in doing so, I apologize.”

      No, he first used the word fetus and used it inappropriately. Apology accepted.

      bettykath wrote: “There is a big difference between a “potential” person and an “actual” person.”

      Yes, and there is a big difference between an infant and an adult.

      bettykath wrote: “What is the birth control method that can be used 2 weeks after fertilization?”

      Mifepristone, also known as RU-486, would be examples, but the pills being mandated by Obamacare under threat of a $100 fine per day for each employee are the two pills mentioned in the article above: Plan-B and Ella. These pills are known as the “morning after pill” and the “week after pill.”

  10. It seems that the employer has no right to medical knowledge of his employees, particularly the women employees. Now, Hobby Lobby wants to get between a woman and her doctor and dictate that treatment be only in accordance with the employer’s religious beliefs. It becomes a case of Hobby Lobby’s owner trying to shove his religious doctrine down the throats of his employees. Whose religious freedom is being violated now?

    • Bonnie wrote: “It seems that the employer has no right to medical knowledge of his employees, particularly the women employees. Now, Hobby Lobby wants to get between a woman and her doctor and dictate that treatment be only in accordance with the employer’s religious beliefs.”

      You have a point, but this is the result of government forcing Hobby Lobby to be involved with medical decisions and treatment. Government doesn’t have a right in the medical decisions of citizens either, but when they usurp that right, and then force employers to take upon them that obligation, a nexus is created that cannot be avoided. The best answer is to repeal the government’s insertion of itself into this matter.

      If the government insists on forcing Hobby Lobby to be involved, it should at least not force its immorality upon the moral sentiments of the employer. Employees should be free to get their health insurance through the exchanges set up by the government if they don’t like the company’s group plan. They can, but the problem is that the employer does not subsidize those plans the way it subsidizes its own group plan. You can learn more about this at the following link:
      https://www.healthcare.gov/what-if-i-have-job-based-health-insurance/

      It seems to me like a very small thing that an employee would feel like their health plan at Hobby Lobby is substandard just because it does not include for free two types of “week after” type abortion pills. How many people would re-shop insurance over that single minor difference?

  11. what most people dont understand are individual rights. that is the problem. If people did understand then this wouldnt even be an issue and people who wanted to work at Hobby Lobby would and people who didnt wouldnt.

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