The Hobbled Hobby Lobby Decision

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."

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.

In the aftermath, the Court vacated several similar cases and sent them back to lower courts to make rulings based on the Hobby Lobby ruling. The court also provided an injunction to Wheaton College to protect it from penalties for refusing to offer contraception.

Given the outrage coming from the Left, you’d think Obamacare was repealed. Far from it. All 2,700 pages remain. Faith trumped the law on just one provision.
The court’s decision has an interesting stipulation.

According to Politico Pro, companies can’t just stop contraception coverage. They must go to court to obtain an exemption. But Daniel Blomberg, an attorney at Becket Fund for Religious Liberty who represented Hobby Lobby, says the ruling makes getting the exemption easy. He notes that the Religious Freedom Restoration Act “only applies to the people who assert it.” So employers will be required to register their religious objections with government one by one.

To understand why the case was based on the Religious Freedom Restoration Act and not directly on the First Amendment, you have to understand a long line of Free Exercise Clause case law. To summarize briefly, everyone recognizes that "it's against my religion" can't be a universal excuse for violating the law; otherwise, Rastafarians could legally smoke marijuana, Quakers could refuse to pay taxes because their tax money funds the Army, and Moloch-worshipers could perform human sacrifices.

There have been two schools of thought in modern SCOTUS decisions as to where to draw the line: one doctrine, which originated with an opinion by Justice Brennan during the Warren Court era, said that the Government can force someone to violate their religious beliefs only if it has a "compelling governmental interest" in doing so (e.g., preventing murder or funding the Army) and the law used the "least restrictive means" of serving that interest.

Later, in the 1990s, a majority of the Court (ironically, led by Justice Scalia) overruled the Brennan test and said the Government could force someone to violate their religion as long as the law was "generally applicable" and didn't single out any particular religion for discrimination. Under that view, the Contraception Mandate would be constitutional. (That case involved Native Americans who used peyote in religious rituals; the Court's liberals said they had a First Amendment right to do so, but the conservative majority held against them.)

Congress was unhappy with Scalia's view, and reinstated the Brennan test by statute in the Religious Freedom Restoration Act (passed unanimously by the Houses and 97-3 by the Senate-- neither liberals nor conservatives liked Scalia's test).

Thus, the issue in this case was not whether the Contraception Mandate was constitutional, but whether it violated the RFRA. The majority said that there may be a compelling interest in guaranteeing women birth control, but Congress can achieve that goal by a less restrictive means (e.g., having the Government pay for it directly.)

Doing her coitus-interruptus routine, Sandra Fluke spoke out about the awful "war on womyn." BTW, there's still a reward out for anyone who can come up w/ the name of one man who had sex w/ Sandra.

Course, I was particularly pleased when Texas Democrat, and abortion worshipper, Wendy Davis entered the fray.

In true Texas-style, Wendy assertively warned guys what could happen if they dared approach womyn w/ an unsheathed penis.

The whole thing is a colossal case of misdirection by the media (not just the liberal media, either) anyway. Hobby Lobby DOES pay for contraceptives through their insurance plan. What they went to court over was morning-after pills and the like. Four things out of the 20 mandated things is what this case was about. The other 16 of 20 on the list they do pay for, and have been paying for since before the case was filed.

I think both conservative and liberal media have blown this whole case out of proportion. Should be a fairly common-sense thing that if a woman needs a morning-after pill often enough to need insurance to pay for it, she’s doing something wrong. OTOH, this case was NEVER about normal, everyday birth control used to prevent unwanted pregancies, including sterilization surgeries. But the headlines don’t tell you that. Much easier to get more ratings and more hits by making mountains out of molehills.

This is actually a thoughtful article. I had prepared myself to be unhappy with it based on the title and the line about freedom of conscience, but it turned out better than OK.

Alito, though, in my view was not being contradictory. He was running skillfully through a language gauntlet that would have derailed their ruling if it been said otherwise in this politically correct climate.

What's the real truth? That baby is not to be punished except by due process of law and the opportunity to confront its accusers and be advised of the crimes it has committed that rise to the level of capital punishment.

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