JURIST Guest Columnist Joseph La Rue of Alliance Defending Freedom discusses the significance of the Supreme Court’s future ruling in the birth control mandate contained with the Affordable Care Act

Imagine that you are a member of People for the Ethical Treatment of Animals and opposed to the slaughtering of animals for food. You are committed to the principle that animals must be respected, not used for human consumption. The thought of supporting the meat industry is anathema.

Now suppose you start a business selling craft products. You stock quality products that people enjoy. Soon, you are opening stores across the nation. You strive to treat your customers and your employees well. Your full-time employees start at 80 percent above minimum wage, and you provide them quality health insurance. You also open an on-site comprehensive health care clinic at your corporate headquarters with no co-pays. You are committed to your employees.

You are also committed to PETA. Every year you donate 10 percent of your income to animal-rights organizations. You are making a difference—for people and for the cause in which you believe.

Now suppose that President Barack Obama calls for Congress to help people eat better. Congress determines that many people eat poorly because junk food is cheaper than nutritious food. So it creates a law, commonly called “Obamafood,” requiring employers with 50 or more employees to provide them a weekly allowance of high-quality food, which must include lean meat such as chicken or turkey.

You employ well over 50 employees. You have no problem providing most of the food choices Obamafood mandates. But chicken or turkey? Impossible. You cannot provide meat without compromising everything in which you believe. You simply cannot comply with the chicken mandate.

Change PETA to the Mennonite or Southern Baptist church, and the chicken mandate to the abortion pill mandate, and this describes the crisis faced by the owners of Conestoga Wood Specialties and Hobby Lobby. Both families, the Hahns and the Greens, treat their employees well. The Green family, for example, starts employees at $14 an hour, provides health insurance, and has an employee clinic. And the Greens are very generous with their money, giving more than 10 percent of their earnings each year to charity. It is believed that the Greens have given away (PDF) some $500 million dollars to various charities. The Hahns, likewise, contributed more than a million dollars to various charities between 2010 and 2012.

Obamacare’s abortion pill mandate requires that the Hahns and the Greens provide their employees with health insurance that includes preventive care. Like our imaginary PETA business owner, the Hahns and the Greens are happy to provide most of what is required. They have no qualms with providing generous insurance benefits; they already do that and believe it is part of their Christian duty to do so.

But some of the items that Obamacare bureaucrats define as “preventive services” and that Obamacare requires—such as various intrauterine devices and “morning after pills”—are actually abortifacients, capable of preventing a newly fertilized embryo from implanting in the uterus. And this is something the two families cannot provide. They are committed Christians and hold certain beliefs inviolable. Among those is the conviction, based on the Bible and their basic morality, that human life and dignity begin at conception. The majority of Americans agree (PDF), as do many leading scientists and textbooks.

Requiring the Hahns and the Greens to fund coverage for abortifacients is comparable to requiring a PETA member to fund food that contains meat. Obamacare’s abortion pill mandate is anathema to them. Complying with it would require them to violate their conscience and their religious beliefs. More than 500 scholars, religious leaders, and health care professionals have called this mandate unacceptable (PDF).

So both families filed suit to challenge the mandate as applied to their businesses. The lawsuits have been heard by the Supreme Court, and a decision is expected in late June. (Alliance Defending Freedom represents the Hahns and Conestoga Wood Specialties, and the Becket Fund represents the Greens and Hobby Lobby).

In challenging Obamacare’s requirement that they fund coverage for abortifacients, both the Hahns and the Greens rely on the federal Religious Freedom Restoration Act. Congress designed this law to protect religious faith from government overreach. It passed overwhelmingly in 1993 with a unanimous vote in the House and a vote of 97 to 3 in the Senate. A broad coalition that included liberal stalwarts like Charles Schumer, Nancy Pelosi, and Barney Frank, along with conservative icons like Newt Gingrich, Lamar Smith, and Peter King sponsored the bill in the House. In the Senate, meanwhile, such notables as Joe Biden, John McCain, Barbara Boxer, Barbara Feinstein, Mitch McConnell, and the ‘Lion of the Senate,’ Ted Kennedy, voted in favor of passage.

When President Bill Clinton signed RFRA into law, he reportedly quipped, “The power of God is such that even in the legislative process, miracles can happen.” And indeed, it did seem that a miracle had occurred. Not only did RFRA receive a near-unanimous vote from both sides of the aisle in Congress, it had overwhelming support from policy organizations on both the left and the right. Those calling for its passage included such diverse groups as the American Civil Liberties Union, the National Association of Evangelicals, People for the American Way, and Concerned Women for America. Citizens—as well Congress and the president—overwhelmingly agreed that religious freedom was important and must be protected.

As Clinton explained, “What this law basically says is that the government should be held to a very high level of proof before it interferes with someone’s freedom of religion.” In legal terms, RFRA requires that, if a law burdens someone’s free exercise rights, the government must demonstrate that the law serves a “compelling interest” and is the “least restrictive means” for achieving that interest.

As the Supreme Court explained in City of Boerne v. Flores, this is “the most demanding test known to constitutional law.” It requires the government to have an “interest[] of the highest order … And the law must impose on the protected freedom no more than absolutely necessary to accomplish its purpose …”

When this standard is used to evaluate the abortion pill mandate as applied to Conestoga Wood Specialties and Hobby Lobby, it becomes clear that they should prevail. As a foundational matter, courts are not to find a compelling interest where the government has granted broad exceptions to the requirements of the law. This is because “a law cannot be regarded as protecting an interest of the highest order … when it leaves appreciable damage to that supposedly vital interest unprohibited.”

Yet the abortion pill mandate does not apply to tens of millions of people. For example, many employers are not required comply with the underlying preventive services mandate at all, including those offering “grandfathered” plans. Obamacare does not fine those with fewer than 50 employees if they drop their employees’ insurance plans. Additionally, the Department of Health and Human Services granted exemptions from the mandate for some religious entities—but not for religious families in business.

The massive exemption of people from the mandate’s required contraception coverage belies the government’s claim that it has a compelling interest in requiring employers to provide their employees contraception and abortifacient coverage. Without a compelling interest, the mandate cannot legally be used to force the Hahn and Green families to act contrary to their sincerely held religious beliefs.

In addition, the requirement that employers provide objectionable coverage is not the “least restrictive means” of accomplishing the government’s proffered compelling interest. This test requires the government to “demonstrate that no alternative forms of regulation” that would “infring[e fewer] First Amendment rights” would accomplish the government’s goals. If a less restrictive alternative would serve its purpose, the government must use it.

There are many ways for the government to advance its interest in healthcare besides requiring a religious family to pay for religiously objectionable drugs and devices. For instance, the government could pay for this coverage itself or let employees get subsidies for it on Obamacare’s “exchanges.” The government already funds contraception extensively and is content to subsidize insurance that includes contraception when small employers do not offer insurance. Also, employees who want objectionable coverages could purchase them themselves. Forcing the Hahns and the Greens to violate their conscience is not “the least restrictive means.”

Under RFRA, both Conestoga Wood Specialties and Hobby Lobby should win their lawsuits. And that is a good thing. As Clinton said, “[W]e can never be too vigilant in this work” of protecting religious freedom—the “first freedom” the Founders enshrined in the Bill of Rights.

Joseph La Rue is legal counsel with Alliance Defending Freedom, which represents Conestoga Wood Specialties in its lawsuit before the U.S. Supreme Court.

Suggested citation: Joseph La Rue, Conestoga, Hobby Lobby, and the Religious Freedom Restoration Act Explained, JURIST – Professional Commentary, Apr. 24, 2014, http://jurist.org/hotline/2014/04/joseph-larue-birth-control-mandate.php.