Conscience at the court

WASHINGTON—The Green family, owners of craft retailer Hobby Lobby, and the Hahn family, owners of cabinet maker Conestoga Wood Specialties, have a common cause but are very different. The Greens are evangelical and public with their faith while the Hahns are Mennonite and private. Even before Hobby Lobby founder David Green found himself in the middle of a national debate on religious liberty, he had sat for many interviews about his faith and his built-from-scratch business. The Hahns, though, hadn’t spoken publicly about their similar situation aside from written statements.

After the Obama administration decreed that businesses must provide contraceptive coverage to employees under Obamacare, the Greens won an injunction at the 10th U.S. Circuit Court of Appeals and announced they would not comply with the mandate with regard to abortion-causing drugs even if they lose at the Supreme Court and thus face $475 million in fines. The Hahns, denied an injunction by the 3rd U.S. Circuit Court of Appeals, complied with the mandate, under protest.

On March 25, the Greens and the Hahns were at the Supreme Court to hear their case, Sebelius v. Hobby Lobby, argued before the nine justices. They sat among an audience of 157 lawyers and members of the public who watched silently and attentively, the court’s security guards having confiscated their digital devices. One hundred and five reporters sat shoulder to shoulder in the press wing of the courtroom, scribbling notes. Outside, unseasonal snowflakes fell thick and heavy.

Both Hobby Lobby and Conestoga already cover contraceptives in their employee health plans, but both object to covering the federally mandated Plan B and Ella pills on the grounds that they can abort new embryos. For the first time, the Supreme Court will decide whether for-profit corporations, like nonprofit corporations, can challenge a government mandate on religious grounds, specifically under the Religious Freedom Restoration Act (RFRA).

The stakes are high. Thirty-seven other cases from for-profits challenging the mandate are currently in lower courts. But this case concerns every religious employer, not only those who object to abortifacients. Can a for-profit religious hospital have protections like a nonprofit religious hospital? Could for-profit employers object on religious grounds if the federal government one day mandated surgical abortions? Could Muslims running a halal slaughterhouse object to a law on religious grounds? Justice Samuel Alito, citing a new Danish animal welfare law that outlawed kosher and halal slaughterhouse practices, implied that a ruling against Hobby Lobby and Conestoga would set American legal precedents on a European trajectory, where religious expression and practice is increasingly forbidden from public life.

Anthony Hahn, CEO of Conestoga, declined an interview with me on the court steps but later agreed to an email interview. I asked Hahn to explain why his family decided to file a lawsuit when Mennonites typically avoid litigation. “Mennonites,” he replied, “do not live a life of retaliation.” He cited biblical commands to pray for those in authority in order to live a quiet and peaceable life but also the Bible’s commands to obey God rather than man: “The Obamacare mandate, as the government admits, includes products which take human life at its earliest stage. This is in direct conflict with God’s teachings in the Bible where we are instructed not to kill.”

The mandate, he says, left him no choice but to go to court: “This is not a suit of retaliation to get money, but a suit to keep from being forced to do something that is against our beliefs and against the teachings of the Bible.”

Both families filed their cases about 18 months ago: Most cases that ascend to the Supreme Court take longer. The lawyers who handled the suits in lower courts on both sides of the cases relinquished the arguing privileges to the Supreme Court specialists. Paul Clement, former solicitor general, in his 73rd oral argument before the Supreme Court, jousted on behalf of Hobby Lobby and Conestoga; current Solicitor General Donald Verrilli Jr. argued on behalf of the government. Verrilli and Clement famously faced off in the Supreme Court case challenging the core of Obamacare in 2012. That time the arguments went well for Clement and badly for the unusually unglued Verrilli, but Clement lost anyway. Verrilli did fine this time, but Clement still got the better of him in the arguments.

At the core of the arguments was whether the contraceptive mandate as applied to businesses passed RFRA’s “test.” RFRA gives courts a test to decide whether the government is imposing a “substantial burden” on a person’s religious practice. If the government is imposing a burden, then it must demonstrate a “compelling interest,” and it must use the “least restrictive means” of burdening religious practice. The Supreme Court justices seemed almost to take for granted that the two corporations could qualify as “persons” who fell under RFRA.

“It surprised me how little the corporations issue came up,” said Becket Fund for Religious Liberty attorney Lori Windham, who handled Hobby Lobby’s case in the lower courts. The court went straight to debating the merits of the case. Was the mandate a substantial burden on the businesses? Did the government have a compelling interest? Did it use the least restrictive means of accomplishing that interest?

Religious freedom lawyers were mostly optimistic after the arguments, but some have chosen to remain pessimistic until they see a decision. The optimists noted that most of the justices, including liberal Justice Stephen Breyer, posed critical questions to the government. Breyer, though he said his question reflected “no point of view,” questioned whether the contraceptive mandate was really the “least restrictive means” the government could use to get contraceptives to women without imposing on religious beliefs. Couldn’t the government just provide the contraceptives itself? he asked. The government has argued that contraceptive coverage is cost-neutral because of the savings it generates.

Justice Anthony Kennedy, considered the true swing vote in this case, questioned the government’s argument that for-profit companies can’t challenge a mandate on religious grounds: Would that require companies to pay for abortions?

Verrilli responded, “There is no law like that on the books.” Chief Justice John Roberts asked, “There is no law on the books that does what?” Verrilli: “That makes a requirement of the kind that Justice Kennedy hypothesized.” Roberts: “Flesh it out a little more. There is no law on the books that does what?” Verrilli: “That requires for-profit corporations to provide abortions.”

Roberts pounced: “Isn’t that what we are talking about in terms of their religious beliefs? One of the religious beliefs is that they have to pay for these four methods of contraception that they believe provide abortions. I thought that’s what we had before us.” Verrilli answered that federal and state laws don’t consider the drugs at issue to be abortifacients.

Alito took a swing at Verrilli next, with the example of the Danish law against kosher and halal slaughterhouses. Both Breyer and Kennedy joined Alito’s colloquy, and asked Verrilli to explain how the contraceptive mandate was different. Breyer: “Take five Jewish or Muslim butchers. What you’re saying to them is if they choose to work under the corporate form, which is viewed universally, you have to give up on that form the freedom of exercise clause that you’d otherwise have.”

The pessimistic religious freedom lawyers noted that Kennedy and the three female liberal justices posed hard questions to Clement too, mostly about the rights of the employees working at Hobby Lobby and Conestoga who may not share the owners’ beliefs. Justices Elena Kagan and Sonia Sotomayor emphasized that Hobby Lobby and Conestoga had a choice to drop insurance altogether and pay a tax that would amount to about the price of coverage. Some pessimistic religious freedom lawyers were also concerned that the court may throw nonprofits under the bus by ruling in Hobby Lobby’s favor, but accepting the government’s so-called “accommodation” to nonprofits for the mandate and applying it to for-profits. The accommodation asks nonprofits to certify a third party administrator to provide contraceptives and abortifacients to their employees.

Nonprofits currently in court say the accommodation does not satisfy their conscience objections. Clement in the arguments suggested that the accommodation might be a workable alternative for Hobby Lobby and Conestoga, though he also suggested the government pay for the drugs itself. Before the oral arguments, the government and the two businesses had never discussed the possibility of applying the nonprofit accommodation to for-profits, so it would be strange if the court turned to that as a solution without further discussion.

Eighteen months after Hobby Lobby filed its case, the day after the Supreme Court arguments, Lori Windham returned to the Becket Fund’s offices on the Georgetown waterfront. Windham was wearing more makeup than she would prefer for the battery of post-argument press interviews, and had polished off a Diet Coke. Her desk was organized.

With the arguments behind her, Windham checked in with her other clients. Even if Hobby Lobby and Conestoga win, 47 nonprofit cases against the mandate are still pending in lower courts, with Becket handling many of them. Windham initially thought one of the nonprofit cases would go to the Supreme Court first, but with the lag in the federal government releasing its final rules for nonprofits, those cases have moved more slowly. She was not one of the lawyers predicting a 6-3 win in the Hobby Lobby case, remembering the tough questions posed to Clement: “You don’t know what’s going to happen. ... Now we play the waiting game.”

Conestoga’s Hahn family will be praying as they wait. “It is very hard to be in the national spotlight,” said Anthony Hahn in our email interview. Victory at the high court would mean a return to the life he longs to lead: “We want to continue to live our lives in a quiet and peaceable manner that glorifies God away from media attention.”

Corporate Europe

As Justice Alito’s question about Danish law indicated, not many would associate high conscience protections with European laws. But one strange amicus brief on behalf of the families leading up to the case came from a number of international law schools, mostly in Europe, arguing that European constitutional courts had recognized that corporations have human rights.

In one example, Germany’s Federal Constitutional Court protected a limited-liability company operating a hospital from government regulation on religious grounds. The German court wrote about the corporation: “The practice of religion encompasses not only the sphere of faith and religious service, but also the freedom to develop and be effective in the world, as its religious and social task requires.” The same court later ruled in favor of a Muslim butcher on religious grounds.

The brief argues that Europe’s example of conscience protections shows that the U.S. government’s contraceptive mandate is not the “least restrictive means” of accomplishing its healthcare goals. —E.B.

Intra-feminist fight

While the Hobby Lobby case draws attention to evangelicals and Catholics who oppose abortifacients or contraceptives on moral grounds, a surprising secular feminist movement against hormonal birth control is gaining momentum. In Sweetening the Pill: Or How We Got Hooked on Hormonal Birth Control, published last October, Holly Grigg-Spall argues Western society has pushed birth control pills on women in the name of feminism with little thought to health consequences.

She paints the suppression of women’s natural cycles as a form of left-wing misogyny meant to make women available for regular sex and office work. She blames the contraceptive pill Yasmin for harming her mental health, and notes how it can cause blood clots and dangerously elevate potassium.

Carol Downer, a longtime pro-abortion activist, has endorsed the book. “I am not anti-contraception, pro-life, or a frigid man-hater,” Grigg-Spall wrote as a disclaimer. “I use condoms, spermicide, and the fertility awareness method. I am a feminist.” Her feminist critique of the pill is provoking bitter backlash from other feminists: One reviewer at the website Slate panned Sweetening the Pill as “poorly researched, shoddily argued, and fundamentally incoherent,” and insisted the health risks of hormonal birth control (the FDA says they include a small risk of stroke, heart attack, and breast cancer) were worth “the benefits of reliable, convenient, female-controlled contraception and the spontaneous sex life.”

The popularity of Grigg-Spall’s book seems linked with broader interest in natural childbirth. Early this year former talk show host Ricki Lake, who has produced documentaries promoting home births and breastfeeding, optioned the rights to turn Sweetening the Pill into a documentary.—Daniel James Devine