The Future of Religious Freedom at the Supreme Court

Can businesses, including family-owned businesses and closely held corporations, exercise religion? If so, what burdens may the government impose on such exercise of religion? What compelling interests must the government claim in order to justify burdening a business’s religious freedom? These were among the many issues argued at the Supreme Court on Tuesday, March 25, 2014 in the case of Hobby Lobby and Conestoga Wood Specialties v. Sebelius. (Transcript available here.)

These business owners challenged the “contraceptive mandate” that was issued as an implementation of the Affordable Care Act. The mandate requires employers to cover certain types of “preventative care,” including abortifacient drugs such as Plan B. As these and other challenges to the mandate have made their way through the courts, Life Legal Defense Foundation has submitted amicus briefs pointing out that the claimed “compelling interest” the government is citing is unsupported by the facts. The government asserts a compelling interest in improving women’s health, but the forms of contraception mandated are, in fact, proven to have harmful long-term effects on women’s health. (Read LLDF’s brief at the Supreme Court here.)

“As the attorney for the business owners stated, the government had an ‘incredibly weak’ case on the matter of compelling interest,” comments Katie Short, Life Legal Defense Foundation’s Legal Director. “LLDF has argued for years in these cases that the ‘interest’ asserted is far from ‘compelling.’”

In an interesting phase of the arguments, Justice Sotomayor questioned whether the business owners could drop healthcare coverage for their employees altogether and pay the resulting fine as a way around their religious objection. Attorney Paul Clement, counsel for the business owners, pointed out that this approach would be financially devastating. Business owners could cancel their employee insurance, pay the fine for not providing insurance, and could then increase wages for their employees to allow them to obtain their own insurance (which would likely cost more than what they could get through an employer’s group plan). But these increased costs would not be the end: the employer would still face at least another 20% cost increase to cover additional taxes.

It is also unclear how this approach would further the government’s ultimate interest, since the goal of the Affordable Care Act was understood to be providing health insurance. Nonetheless these increases in costs and red tape will become a reality for businesses such as those owned by the Green and Hahn families should the Court not recognize and protect their religious freedom.

All other concerns aside, the full weight of the issues in this case are put into perspective by Justice Kennedy’s observation to the government’s attorney: “Under your view, a profit corporation could be forced – in principle, there are some statutes on the books now which would prevent it, but – could be forced in principle to pay for abortions.” While Solicitor General Verrilli tried to qualify the answer, it became apparent that, indeed, this is the government’s position.

This is the future of the fight for religious freedom. If the government can force coverage of abortion drugs now while qualifying them as contraceptives, what prevents forced coverage of surgical or other forms of abortion in the future?