As the federal government uses the term, the term “contraceptive” no longer describes ways to prevent conception. Rather, the term now includes terminating a pregnancy after conception occurs. Thus, many of what are now called “contraceptives” are really abortifacients — drugs and devices that induce a miscarriage and the death of the embryo in the womb. Under rules adopted after the enactment of Obamacare, the federal government seeks to require all employers providing group health insurance to provide these abortifacients, calling them contraceptives.
On January 28, 2014, CLDEF filed in the U.S. Supreme Court an amicus curiae brief in support of Conestoga Wood Specialties Corp., a Mennonite family-owned business located in Lancaster County, Pennsylvania. The company had been ordered by the Secretary of Health and Human Services to purchase health insurance to cover its employees paying for contraceptive services, including “the full-range of FDA-approved contraceptive methods and patient education and counseling for women with reproductive capacity.”
The Conestoga Wood case was consolidated with the Hobby Lobby case, known as Burwell v. Hobby Lobby.
In an introductory Statement, CLDEF’s brief reminds the Court that the contraceptive mandate does not appear in the Affordable Care Act enacted by Congress and signed by the President. The mandate was not even developed by the Department of Health and Human Services, or any other agency responsible to the President. Instead, it is the product of a committee of 16 experts appointed by the Institute of Medicine, a nongovernment agency that is not accountable to the people or their elected representatives. In the opinion of this committee of experts, the contraceptive mandate is required because a woman’s “well-being” includes the right to engage in recreational sexual activity without risk of an unplanned pregnancy, and it is this opinion of a panel of experts that HHS now has made into a binding requirement.
CLDEF’s brief supports the Hahn family members’ claim that the mandate violates their rights under the free exercise clause of the First Amendment to the United States Constitution. Unlike the Hahn family brief, which relies upon court precedents supporting religious tolerance, CLDEF’s amicus brief rests upon the original First Amendment text that secures freedom of religion. According to the cases that apply the religious tolerance doctrine, a person’s conscience may be overridden by laws that serve a compelling government interest. However, under the First Amendment freedom of religion, a person’s conscience cannot be violated no matter how “compelling” the government’s interest may be.
Finally, our brief reminds the Court that forbearance is a Christian virtue and that the contraceptive services mandate prevents the Hahn family from practicing that virtue by mandating complicity in what they believe to be the sin of abortion in violation of the Hahn family’s statement of faith in the sanctity of human life, supporting that position with quotations from the Holy Bible.
In summary, our brief maintains that, according to the original meaning of the free exercise of religion, the federal government is prohibited from enforcing the contraceptive mandate because it prohibits the Hahn family members from performing their duties to their Creator according to the dictates of conscience.
The U.S. Supreme Court decided the case in favor of the businesses and against the government, but on the weakest possible grounds — the badly flawed law known as the Religious Freedom Restoration Act (signed into law in 1993 by President Bill Clinton) — taking advantage of the tactical error as to how Hobby Lobby chose to argue the case. Thus, the Supreme Court never reached the foundational First Amendment issue. This tactical blunder will result in much further litigation, as the government will continue to assert that it has a compelling state interest to regulate each business. Even worse, the Supreme Court’s decision implies that women have a right to seek government funding of abortifacients.