When: The U.S. Supreme Court will render a decision in these joint cases within the next few weeks.

Who and What—Descriptions of the parties and their claims:

Hobby Lobby

The Green family, the founders of Hobby Lobby and Mardel, a chain of Christian bookstores, together employ approximately 13,000 workers who are provided a generous health insurance plan.

They face the possibility of closing the doors of their successful businesses because the HHS mandate is forcing them to conduct business contradictory to their beliefs. The HHS mandate requires businesses to provide coverage for 20 types of contraceptives, 4 of which—including Plan B and the “morning after pill”—violate their conscience based on their religious convictions concerning abortion.

Hobby Lobby provides coverage for non-abortion causing contraceptives

Represented by the Becket Fund for Religious Liberty, Hobby Lobby, Mardel, and the Green family filed a lawsuit to oppose the mandate, as they must make a choice between complying with the mandate or paying a fine as much as $1.3 million per day of non-compliance.

They won a preliminary injunction, stopping any enforcement of the mandate against them pending the completion of the litigation, at the 10th Circuit. The injunction was granted based on the “likelihood of success” of Hobby Lobby’s claim under the federal Religious Freedom Restoration Act (RFRA).

Hobby Lobby also asserts other claims based on the First Amendment (religion, speech), Fifth (due process, equal protection), and the Administrative Procedure Act (HHS did not follow the law in issuing the mandate). Those have not been addressed yet.

More information available at http://www.becketfund.org/hobbylobby/

Conestoga Wood

Conestoga Wood Specialties is owned by the Hahns, a Mennonite Christian family in Pennsylvania, and they are facing a similar challenge with respect to religious conscience.

The possibility of fines up to $95,000 per day for providing health insurance without the complete list of contraceptives in the HHS mandate would cripple the cabinet-making business. The Hahns employ almost 1,000 people, yet their business would face the possibility of closing its doors with the enforcement of the mandate.

Like Hobby Lobby, Conestoga Wood filed a lawsuit against the HHS mandate with similar claims under RFRA, the 1st and 5th Amendments, as well as the Administrative Procedure Act. They allege that their religious beliefs about the sanctity of life will be compromised by being forced to provide possible abortifacients in their company health insurance plan.

Conestoga Wood provides coverage for non-abortion causing contraceptives

They were denied a preliminary injunction under both RFRA and the First Amendment religious “free exercise” claims at the district court and at the 3rd Circuit. Alliance Defending Freedom and its allied attorneys are representing Conestoga Wood Specialties. The lower courts have not ruled on any of the other claims in the lawsuit.

Because no injunction was issued, nor was a stay pending appeal granted on Conestoga’s claims, Conestoga’s insurer proceeded to provide the objectionable coverage to avoid its own possible liability for non-compliance.

More information available at http://www.adfmedia.org/News/PRDetail/8451

What are the key issues that SCOTUS is considering?

Can a for-profit corporation “exercise religion?” In other words, is a for-profit corporation (or are its owners) even protected under RFRA or the First Amendment? Do they have “standing” (i.e. the “right”) to bring a lawsuit in the first place?

If the first question is answered “yes,” then the Court will look to see whether:

  1. Hobby Lobby and Conestoga’s religious free exercise has been “substantially burdened” by the HHS mandate. If so:
  2. Does the government have a “compelling interest” in burdening those religious exercise rights, and
  3. Has the government chosen the “least restrictive means” to accomplish its “compelling interest?”

(If the government loses the argument over either (2) or (3), Hobby Lobby and Conestoga win. But if Hobby Lobby and Conestoga lose the argument under (1), they lose.)

What if we win – is the case over?

No. Both cases will be sent back down to the lower courts for further proceedings. No trials have been conducted in either case, and hopefully the preliminary injunction will end up being made a permanent one. But winning these key legal issues can shorten further proceedings (in this and other pending cases), and may force the Administration into further altering the HHS mandate’s requirements concerning contraceptives.

What if we lose – is the case over?

Technically, no. Both cases will go back for trial on all of the issues, and the companies might still prevail on other issues that were not the subject of the preliminary injunction requests. However, without an injunction in place, these companies would be facing crippling fines, which might affect their viability and their ability to proceed with the lawsuit.

Remember, this case involves a for-profit company. But there are currently 49 other lawsuits pending concerning the HHS mandate’s effect on religious non-profits. While Hobby Lobby and Conestoga are representative of the issues in the 48 pending cases concerning for-profit companies, the non-profits have been quite successful thus far in their own unique court challenges to the mandate.

What was the timeline for the Affordable Care Act and HHS mandate?

March 2010 – ACA signed into law. Employers with 50+ employees must provide health insurance that meets certain requirements. Employers with fewer than 50 employees are not required to provide health insurance, but if they do, then it must comply with all ACA requirements. Churches are exempted. Religious non-profits (narrowly defined) can obtain an “accommodation” of their beliefs under certain circumstances.

September 2010 – HHS asks the Institute of Medicine to recommend a list of “preventive services for women.” HHS adopted those recommendations in summer 2011.

August 1, 2012 – deadline for “for-profit” companies to begin complying with HHS mandate for their next plan year.

September 2012 – Hobby Lobby files suit (injunction ultimately granted)

December 2012 – Conestoga Wood Specialties files suit (ultimately denied injunction)

July 2013 – federal court issues prelim injunction in favor of Hobby Lobby

August 1, 2013 – deadline for non-profit organizations not exempted or accommodated to begin complying with the mandate for their next plan year. Subsequently extended to Jan 1, 2014.

March 2014 – SCOTUS oral arguments in Hobby Lobby and Conestoga Wood Specialties case.

Lawsuit statistics:

  • 48 for-profit lawsuits filed. 34 preliminary injunctions granted, 6 denied.
  • 49 non-profit lawsuits filed. 24 preliminary injunctions granted, 2 denied.
  • 3 of the non-profit suits are class actions.
  • The number of known plaintiffs in these cases is more than 300. With class action suits added, many more are yet to be determined.

High-Level Talking Points

  • Religious groups and business owners should not have to violate their faith in order to follow the law.
  • This is a huge power grab by the government to define who is religious enough to be exempt from this law.
  • It’s not the role of the government to define what we believe or what our faith includes. That’s the role of the church.
  • There is an appropriate role for government, but this isn’t it.
  • This is an attempt by the government to force religious people to choose between obeying the law and their religious convictions.
  • If that’s the new price of citizenship, it may be a price too high for many.
  • Fundamentally, these cases are not about abortion or contraception: They are about whether government can require faith-based groups to violate deeply held beliefs.
  • Pregnancy is not a disease; free access to abortion drugs is not health care.
  • Contraception is readily available; this is about religious freedom.
  • Faith-based groups should not be required to pay for or provide drugs that may cause an abortion.
  • If this law stands, religious freedom moves down the list of protected rights, right behind abortion and contraception. That’s not what our Founders had in mind when writing the Free Exercise clause of the 1st Amendment.

Other Talking Points

  • People of faith do not forfeit their religious freedom when they choose to start a business.
  • Corporations have many of the same rights as individuals, including the freedom of speech, petition, association, and, of course, religion. Churches, for example, are corporations and nobody would argue that they can’t exercise religion.
  • RFRA requires the government to choose the “least restrictive means” of accomplishing a compelling purpose. The method it chose here (HHS mandate) is the MOST restrictive of religious freedom that it could have picked.
  • The government chose to “exempt” only churches, and provided a questionable “accommodation” for other religious organizations which, as the Little Sisters of the Poor have argued, is just as bad as no accommodation at all.
  • This Administration has attempted through various policies and actions–including the HHS mandate–to reduce the free exercise of religion to the “right to worship” inside the four walls of a church. That is not the vision of a robust religious freedom our Founders envisioned.
  • The government should not be in the business of picking who is “religious enough” to be granted relief from the mandate’s effects. The fact that of the employers with actual religious conscience objections to the mandate, some are exempted, some are “accommodated,” and others have no recourse whatsoever, puts government in the religion business, in violation of the First Amendment.
  • These cases have implications beyond the HHS mandate. Victories for Hobby Lobby and Conestoga under the Religious Freedom Restoration Act logically extend to the rights of religious business owners like wedding photographers, bakers, and florists in state battles (in states with RFRAs) against public accommodation laws that burden their free exercise of religion.
  • The Government has already exempted 100 million employees from the mandate for commercial and political reasons. It can have no “compelling interest” in enforcing the mandate against these particular owners.