The Hobbled Hobby Lobby Decision

Terence P. Jeffrey | July 2, 2014 | 4:42am EDT
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Looked at from a distance, it may seem as if the Supreme Court struck a mighty blow in defense of religious liberty in the case of Burwell v. Hobby Lobby, which it decided this week.

Yes, the court ruled that a law called the Religious Freedom Restoration Act could apply to "closely held" corporations, and under its terms the federal government could not force the Christian family that owns Hobby Lobby to provide insurance coverage for certain drugs and devices that violate the family's religious beliefs.

But looked at more closely, the case shows how profoundly the Supreme Court has distorted our Constitution and how tenuous is our current hold on the most fundamental of all freedoms — the freedom of conscience.

At issue in Hobby Lobby was whether the Department of Health and Human Services could enforce against family-owned corporations an Obamacare regulation that required the corporations to buy health insurance for their employees that cover drugs and devices that can kill human beings by preventing them, as embryos, from implanting in their mothers' wombs.

The court voted 5 to 4 that HHS could not enforce this regulation against the corporations not because that would violate the owners' First Amendment rights to the free exercise of their religion — which tells them not to cooperate in killing humans — but because the regulation does not meet all the requirements set up by Religious Freedom Restoration Act for when the government can violate the free exercise of religion.

The First Amendment says: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

RFRA says Congress can make laws prohibiting the free exercise of religion for certain people in certain situations.

Justice Samuel Alito wrote the court's majority opinion in Hobby Lobby. In it, he explains that RFRA "prohibits the federal government from taking any action that substantially burdens the exercise of religion unless that action constitutes the least restrictive means of serving a compelling government interest."

Joined by Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy (who filed a concurring opinion), Alito argued that:

1) Forcing the employers in this case to provide insurance coverage for certain drugs and devices did indeed substantially burden their exercise of religion; 2) that the government did indeed have a compelling interest for forcing these employers to violate their religious beliefs, but 3) that the particular means the government used to advance this compelling interest force was not the least restrictive one available.

Perhaps because pro-abortion Justice Kennedy's vote was crucial to the outcome, Alito's majority opinion adopted an absurd euphemism — referring to a newly conceived human being as an "already fertilized egg."

"Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus," wrote Alito.

Secondly, the majority opinion assumed that the business owners who sued the government in this case had a "religious belief" that the drugs and devices in question were "abortificacients."

"The owners of the businesses have religious objections to abortion, and according to their religious beliefs the four contraceptive methods at issue are abortifacients," wrote Alito.

Not so. Just as a human embryo is not an "already fertilized egg," the fact that a drug or device kills a human embryo by preventing implantation is not determined by someone's religious views.

In a footnote, Justice Alito explained his "already fertilized egg" passage. He writes: "The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation ... do not so classify them."

OK, so do not call it an "abortion." Just call it a "killing."

Alito and the court's majority then assume for the sake of argument that the government does have a "compelling interest" in giving all women of reproductive capacity cost-free access to drugs and devices that can kill their own unborn children.

"We will assume that the interest in guaranteeing cost-free access to the four challenged contraceptive methods is compelling within the meaning of RFRA," they argue.

But then the opinion concludes that HHS has already created a less restrictive means for distributing these drugs and devices. This less restrictive means is the "accommodation" HHS has granted to religious non-profits. In this accommodation, the government does not impose the abortion-inducing-drug mandate directly on the employer itself but on its insurance company, or (if it is self-insured) its third-party administrator.

Were universal application of the original regulation and this accommodation achieved, all health insurance companies in the United States would have to be owned and staffed solely by people willing to be forced by the government into complicity with the taking of innocent human life.

The court's majority did warn that it might decide in cases involving other organizations that the accommodation itself violates RFRA.

"At a minimum, however, it does not impinge on the [current] plaintiffs' religious belief that providing insurance coverage for the contraceptives at issue here violates their religion, and it serves HHS's stated interests equally well," concluded the court.

This is where the right to life, freedom of religion and health care stand in America today.

To narrowly and immediately preserve the freedom of conscience of some family business owners who managed to get their case all the way to the Supreme Court, a 5-4 "conservative" majority accepted the premise that an abortion is not an abortion and that the families' freedom of religion can be preserved if the health-insurance industry is forced into complicity with the taking of human lives — because that advances a compelling interest of our government.

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