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Two court decisions on suits against the US government’s controversial HHS mandate reveal how future court cases may proceed. Both involve non-Catholic private businesses suing the government on religious freedom grounds.
The mandate requires that nearly all employers include certain so-called “women’s reproductive health” drugs and procedures– birth control drugs and devices, elective sterilization, and “morning after” and “week after” abortifacient drugs — in all employee insurance policies.
On Nov. 19 Oklahoma District Court Judge Joe Heaton denied Hobby Lobby’s request for a preliminary injunction from the mandate on the grounds that a for-profit, secular company does not have religious freedom rights. (For Judge Heaton’s ruling, click here).
Hobby Lobby stores are owned by an Evangelical Christian family, the Greens, whose small educational publishing company, Mardel Inc., is also represented in the suit. The Greens do not object to the birth control or sterilization drugs and procedures covered by the mandate, but say they will not and cannot pay for “morning after” and “week after” abortifacient drugs because their religious faith teaches that abortion is wrong.
Hobby Lobby stores are closed on Sundays, play only Christian music over their sound systems, offer free Bible materials to the public at Christmas and Easter, and give millions to Christian ministries. All members of the family who run the businesses sign a Statement of Faith and Trustee Commitment to honor God with their businesses and “to use the Green family assets to create, support and leverage the efforts of Christian ministries.”
The Greens are represented by the Becket Fund for Religious Liberty, which argues that the owners’ right to religious liberty should exempt them from the mandate.They filed an appeal with the 10th Circuit Court of Appeals on Nov. 21. (For CEO David Green’s op-ed on why the company should be exempt, click here.)
The Associated Press reports that the government’s argument included the claim that the drugs in question do not cause abortions, and the claim that the United States has a compelling interest in providing coverage for the drugs and procedures.
On Nov. 17, a federal court had a very different ruling for Tyndale House Publishers, represented by the Alliance Defending Freedom (formerly Alliance Defense Fund). The world’s largest privately owned publisher of Protestant Bibles and books, Tyndale objected to the same thing Hobby Lobby’s owners objected to: “morning after” and “week after” abortifacient drugs.
Unlike Judge Heaton, US District Court for the District of Columbia Judge Reggie B. Walton found that the religious beliefs of Tyndale-the-company and its owners are “indistinguishable,” and that there is no dispute that “Tyndale’s primary owner, the Foundation, can ‘exercise religion’ in its own right, given that it is a non-profit religious organization.”(Read Judge Walton’s ruling here).
Judge Walton also ruled compliance with the mandate to be a “substantial burden” on Tyndale’s exercise of religion. “Substantial burden” is an important point in such cases, because courts have typically found it acceptable for governments to impose various measures for a compelling interest, even if they violate a right, as long as they can be considered inconveniences rather than burdens.
These points — “substantial burden” and “compelling government interest” — may be key to future decisions. Judge Walton, unlike Judge Heaton, found that the government did not prove it had a compelling interest justifying the mandate. This decision was based in part on the many exceptions the government has already granted — exceptions which, he said, undermine the government’s claim that the rule is necessary. The right to free expression of religion, he said, is more important than ensuring that the Affordable Care Act grants the disputed drugs and procedures to everyone equally.
Like Hobby Lobby, Tyndale’s business operations are based on Christian principles, and its corporate practices include prayer and other specifically Christian actions. But unlike Hobby Lobby, Tyndale is non-profit, and its product is dedicated to promulgating Christianity and educating Christians. ADF lawyers argue that this makes no difference to the merits of the case; it remains to be seen whether courts agree.