Battling Over Birth Control

U.S. Supreme Court Agrees To Hear Cases That Could Reduce Americans' Access To Contraceptives

David Green, billionaire CEO and founder of the Hobby Lobby chain of arts and crafts stores, claims the Obama administration is forcing him to subsidize abortions.

“Being Christians, we don’t pay for drugs that might cause abortions,” Green wrote in a September 2012 guest column for USA Today. “Which means that we don’t cover emergency contraception, the morning-after pill or the week-after pill. We believe doing so might end a life after the moment of conception, something that is contrary to our most important beliefs. It goes against the biblical principles on which we have run this company since day one.”

Green’s comments came after he decided to make a formal legal challenge to a provision in the Affordable Care Act (ACA) that requires most businesses to provide their employees with health insurance that includes access to no-cost birth control. Those who do not receive an exemption from the mandate could be subject to fines of up to $1.3 million per day. Green claimed that the Obama administration’s failure to give him an out on religious grounds left him no other option.

“We don’t like to go running into court, but we no longer have a choice,” he wrote. “We believe people are more important than the bottom line and that honoring God is more important than turning a profit.”

Green’s conviction may soon be put to the ultimate test. The U.S. Supreme Court announced Nov. 26 that it would consider two cases contesting the birth control mandate, Sebelius v. Hobby Lobby Stores, Inc. and Conestoga Wood Specialties Corp. v. Sebelius.

Dozens of similar cases have been brought by secular, for-profit corporations whose owners oppose birth control, and the high court must now decide if these corporations are people with a “religious freedom” right to exercise beliefs, even if doing so infringes on the rights of others.

If a company’s bottom line is a sign that it has received God’s favor, as Green suggests, then the Lord must be pretty darn pleased with Hobby Lobby. Green and his wife, Barbara, started the company out of their Oklahoma City garage in 1970 with a $600 loan.

The Greens initially made miniature picture frames, and two years later they opened their first store. By 2012, Hobby Lobby had more than 500 locations in 41 states and employed over 18,000 people. The corporation did $3 billion in sales for 2012, and Forbes said the 72-year-old Green had a net worth of $5 billion as of September 2013. 

Although the Greens run a secular concern, they aren’t shy about pushing their theology. Hobby Lobby stores are not open on Sunday, and every Fourth of July the firm places full-page ads in newspapers attacking church-state separation and insisting that the United States was founded to be a “Christian nation.”

Green, a member of Council Road Baptist Church in Bethany, Okla., ran into trouble when the ACA was signed into law in 2010 and he decided his right to force his faith on others supersedes government mandates.

Green’s problem with the contraceptive requirement seems to be fueled in part by a highly dubious understanding of medicine; he believes falsely that some oral contraceptives can induce abortions.

In his USA Today column, Green cited his opposition to both the “morning-after pill” and the “week-after pill,” even though both are classified by the Food and Drug Administration (FDA) as contraceptives, and are considered different from RU486, which is commonly known as an abortion pill. Notably, RU486 isn’t considered a contraceptive and is not included in the ACA’s new coverage requirements. 

Scientists have also reached a consensus that birth control pills and other contraceptives don’t cause abortions. Both the National Institutes of Health and the renowned Mayo Clinic have said as much. Susan Wood, a professor of health policy at George Washington University and a former assistant commissioner for women’s health at the FDA, told National Public Radio that at one time scientists were aware that drugs like the “morning after” pill prevented pregnancy after unprotected sex but didn’t know exactly how. Now they do.

“It wasn’t really clear whether it worked before ovulation or after ovulation,” Wood said. “We [now] know that about half of fertilized eggs never stick around. They just pass out of the woman’s body. An abortifacient is something that interrupts an established pregnancy.”

As such, Wood said, a claim that birth control pills cause abortions is “not only factually incorrect, it is downright misleading. These products are not abortifacients. And their only connection to abortion is that they can prevent the need for one.”

Nonetheless, armed with little more than his conviction and very deep pockets, Green filed suit in September 2012 with the help of the Becket Fund, a Washington-D.C.,-based Religious Right legal outfit. Becket argued that the federal Religious Freedom Restoration Act (RFRA), which passed in 1993, exempts Green and Hobby Lobby from forced complicity with the birth control mandate.

But Americans United Executive Director Barry W. Lynn said RFRA was not meant to be applied this way.

“RFRA was never intended to conjure up a sweeping ‘corporate conscience’ right that allows for-profit firms to restrict the rights of third parties,” Lynn said in a November 2013 press release.

In December 2012, the U.S. District Court for the Western District of Oklahoma rejected Hobby Lobby’s RFRA claims and said the company is required to comply with the mandate. But the Becket Fund appealed that decision, and got what it wanted in June 2013 when the 10th U.S. Circuit Court of Appeals, ruling en banc, said Hobby Lobby is likely to prevail in its challenge to the mandate.

The only positive aspect of that decision was a partial dissent written by Chief Judge Mary Beck Briscoe and Judge Carlos F. Lucero, who favorably cited an amicus brief from Americans United, which argued that the owners of secular businesses do not have a religious liberty right to deny their employees access to contraceptives.

AU had also argued in its brief that allowing an exemption for secular for-profit businesses would open the door for other groups to make demands based on their faith’s tenets, such as Jehovah’s Witnesses employers refusing to cover surgery that includes blood transfusions.

The other lawsuit that the Sup­reme Court will consider, Conestoga Wood Specialties Corp v. Sebelius, is essentially the same case as Hobby Lobby – but it resulted in the opposite outcome at the federal appeals level.

Conestoga Wood Specialties was founded in Pennsylvania in 1964 and remains headquartered there. Conestoga employs more than 1,000 people who manufacture wood cabinets, doors and other products used in home construction and remodeling.

In 2008 the company had revenue of $212 million, according to the Central Penn Business Journal. It’s run by Norman and Elizabeth Hahn, along with their three sons, all of whom are Mennonites. And just like Green and his family, the Hahns believe certain contraceptives can cause abortions.

The Hahns are represented by a team that includes the Alliance Defending Freedom (ADF), an Arizona-based Religious Right legal outfit founded by radio and television preachers. The ADF also cited RFRA as the reason Conestoga Wood Specialties should not have to offer insurance plans that provide employees with access to free birth control, adding that no one should have to choose between doing business and honoring one’s faith.

“The cost of religious freedom for the Hahn family and many other job creators across the country who face this mandate is severe,” ADF Senior Legal Counsel Matthew Bowman said in November 2013, according to the right wing, anti-abortion website LifeNews.com. “A family should not face massive fines and lawsuits just because they want to earn a living consistent with their faith.”

The ADF filed its case in December 2012. Ultimately two courts considered its argument, and both didn’t buy it. The first was the U.S. District Court for the Eastern District of Pennsylvania, which saw no substantial burden on religious exercise resulting from the mandate.

“Not only do neutral anti-discrimination laws further a compelling government interest, but as courts have held, they also minimally – if at all –burden religion,” the opinion said.

The U.S. 3rd Circuit Court of Appeals also rejected the ADF’s argument. In July 2013 it held that Conestoga, as a for-profit corporation, does not exercise religion.

“We simply conclude that the law has long recognized the distinction between the owners of a corporation and the corporation itself,” wrote Judge Robert Cowen. “A holding to the contrary – that a for-profit corporation can engage in religious exercise – would eviscerate the fundamental principle that a corporation is a legally distinct entity from its owners.”

Given the sheer volume of cases filed over the contraceptive mandate and the splits among various federal courts that heard these cases, most observers expected that the matter was destined to end up before the high court. Now that it has, there are a few factors in play that make the outcome anything but certain.

One is the controversial 5-4 decision in Citizens United v. Federal Election Commission, the 2010 Supreme Court ruling that said corporations have a constitutionally protected right to free speech.

“If the First Amendment has any force,” Justice Anthony M. Kennedy wrote for the majority, “it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.”

The U.S. Court of Appeals for the 10th Circuit said when it decided the Hobby Lobby case that its decision was based on the Citizens United precedent. Judge Timothy Tymkovich wrote: “We see no reason the Sup­reme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”

But the debate doesn’t end there. One federal court examined the legislative history of RFRA and concluded that it was not meant to justify a for-profit corporation’s exemption from the contraceptive mandate.

In a unanimous opinion issued in September 2013, the 6th U.S. Circuit Court of Appeals found that Autocam Corporation, a Michigan-based for-profit business that manufactures fuel systems, power-steering systems and medical devices, is not entitled to an exemption from the mandate. In its decision for Autocam Corporation v. Sebelius, the court said RFRA’s legislative history “makes no mention of for-profit corporations. This is a sufficient indication that Congress did not intend the term ‘person’ to cover entities like Autocam when it enacted RFRA.”

Although the Supreme Court’s decision on this issue is difficult to predict, the Obama administration expressed optimism about the outcome. In a Nov. 26 statement, White House Press Secretary Jay Carney defended the administration’s policy but shied away from the legal details.

“We do not comment on specifics of a case pending before the Court,” Carney said. “As a general matter, our policy is designed to ensure that health care decisions are made between a woman and her doctor. The president believes that no one, including the government or for-profit corporations, should be able to dictate those decisions to women.”

Of course some Religious Right allies don’t quite see things that way. Instead, their view of the mandate is one of sexual freedom trumping religious liberty.

Shortly after the Supreme Court announced it would hear the cases on the mandate, former U.S. Rep. Ernest Istook (R-Okla.), who once pushed a constitutional amendment that would have effectively destroyed church-state separation and accepted $29,000 in donations from disgraced casino lobbyist Jack Abramoff, said Obama’s health-care agenda is really about promoting consequence-free sex.

 “It is not an isolated event that the Supreme Court has agreed to hear the Hobby Lobby case and sister cases on Obamacare’s mandate for employer-provided contraception and abortifacents,” Istook wrote. “It is part of the war against religion launched as part of that sexual liberation agenda.”

Americans United, meanwhile, is doing all it can to stack the legal deck in favor of true religious liberty. AU has already filed a dozen briefs with federal appeals courts that heard some of the cases challenging the contraceptive mandate, including the courts that decided Hobby Lobby and Conestoga.

AU’s Lynn told Church & State that he’s proud to stand up against corporate owners who want to impose their religious beliefs on their employees, and to put a stop to a distorted concept of “religious freedom.”

“If any corporation’s owner can say ‘I’m not going to cover your insurance costs because your medical needs are immoral to me,’ then what’s to stop bosses from simply refusing to hire anyone who would use their paychecks to buy contraceptives?” Lynn asked. “The endgame here is the elevation of restrictive religious dogma over all other rights.”