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Oklahoma City, OK – The Obama administration argued before a federal court yesterday that Hobby Lobby must obey the HHS mandate that compels companies to pay for drugs for women that may cause abortions. Hobby Lobby is a privately owned Christian business.
The retail chain that has over 500 arts and crafts stores in 41 states had earlier filed a lawsuit against the Obama administration disputing its HHS mandate. The company says it would face $1.3 million in fines on a daily basis starting in January if it fails to comply with the mandate, which requires religious employers to pay for or refer women for abortion-causing drugs that violate their conscience or religious beliefs.
At dispute is the “preventive services” mandate placed by Health and Human Services, which Hobby Lobby says forces it to provide, without co-pay, the “morning after pill” and “week after pill” in their health insurance plan, or face crippling fines up to 1.3 million dollars per day.
“By being required to make a choice between sacrificing our faith or paying millions of dollars in fines, we essentially must choose which poison pill to swallow,” said David Green, Hobby Lobby CEO and founder. “We simply cannot abandon our religious beliefs to comply with this mandate.”
Kyle Duncan, general counsel of the Becket Fund, told the National Review:
The administration’s arguments in this case are shocking. Here’s what they are saying: once someone starts a “secular” business, he categorically loses any right to run that business in accordance with his conscience. The business owner simply leaves her First Amendment rights at home when she goes to work at the business she built. Kosher butchers around the country must be shocked to find that they now run “secular” businesses. On this view of the world, even a seller of Bibles is “secular.” Hobby Lobby’s affiliate, Mardel, sells Bibles and other Christian-themed material, but because it makes a profit the government has now declared it “secular.”
The administration’s position here — while astonishing — is actually consistent with its overall view of the place of religion in civil society. After all, this is the administration who argued in the Hosanna-Tabor case last year in the Supreme Court that the religion clauses of the First Amendment offered no special protection to a church’s right to choose its ministers — a position that the Court rejected 9-0. This is the administration which has taken to referring to “freedom of worship” instead of “freedom of religion” — suggesting that religious freedom consists in being free to engage in private rituals and prayers, but not in carrying your religious convictions into public life. And this is the administration who crafted a “religious employer” exemption to the HHS mandate so narrow that a Catholic charity does not qualify for conscience protection if it serves non-Catholic poor people.
As you point out, the administration is trying to justify its rigid stance against religious business owners by saying otherwise they would become a “law unto themselves,” and be able to do all sorts of nasty things to their employees — like force them to attend Bible studies, or fire them if they denied the divinity of Christ. Nonsense. Hobby Lobby isn’t arguing for the right to impose the Greens’ religion on employees, nor for the right to fire employees of different religions. There’s already a federal law that protects employees from religious discrimination and that’s a very good thing. This case is about something entirely different: it’s about stopping the government from coercing religious business owners. The government wants to fine the Greens if they do not violate their own faith by handing out free abortion drugs, and now it’s saying they don’t even have the right to complain in court about it.
Duncan said the burdensome provisions of the HHS mandate “will hit Hobby Lobby in about two months — on January 1, 2013. At that point, it will face the choice of dropping employee health insurance altogether (and paying about $26 million a year in penalties), or continuing its current plan (which will expose it to about $1.3 million in fines per day). So it is not hard to imagine why the Greens felt they had no choice but to go to court.”
U.S. District Judge Joe Heaton did not rule on the company’s request for an injunction but noted Hobby Lobby’s deadline for compliance. “This does raise a lot of new and different issues,” he said. “There’s not a lot of guidance out there.”
The Obama administration says there is an exemption in the statute but Duncan says that is not acceptable.
“The safe harbor’s protection is illusory,” said Duncan. “Even though the government won’t make religious colleges pay crippling fines this year, private lawsuits can still be brought, schools are at a competitive disadvantage for hiring and retaining faculty, and employees face the specter of battling chronic conditions without access to affordable care. This mandate puts these religious schools in an impossible position.”
