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I asked our team to pause for family time this week before kids return to school. The homepage is updated daily. The Digest returns on Monday, August 2. —Mark Alexander

Jul. 1, 2014

Hobby Lobby Truth and Fiction

HHS loses a big case on religious liberty and ObamaCare.

The Supreme Court’s 5-4 ruling Monday in Burwell v. Hobby Lobby Stores, Inc. was certainly a victory for religious liberty, but like most Supreme Court decisions these days, it was not a slam-dunk that closed the case on government intrusion of religious freedom. To understand just what was accomplished with this ruling, we need to take a closer look at the actual case.

At issue was the fact that certain elements of the Department of Health and Human Services contraceptive coverage mandate conflicted with the company owners’ religious beliefs. The elements in question focused not on all contraceptive devices that prevent conception, but on abortifacients – devices and medications that destroy an embryo in the earliest stages of conception. Hobby Lobby maintained their religious beliefs against abortion were infringed by HHS coercion.

The majority of justices agreed with this assessment, noting that the HHS provision ran against the 1993 Religious Freedom Restoration Act (RFRA) – introduced by Chuck Schumer and signed by Bill Clinton, by the way – which says the government may not “substantially burden a person’s exercise of religion” without a compelling justification that it has used “the least restrictive means” available. Justice Samuel Alito wrote the majority opinion, saying, “The government has failed to satisfy RFRA’s least-restrictive-means standard. HHS has not shown that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion.”

The Court shut down HHS’s ability to force private companies to adopt its broad contraceptive mandate, but the ruling also left the door open for Congress or HHS to shift the burden for contraception coverage to all taxpayers rather than private employers. Not exactly good news. Sure, the Hyde Amendment prevents federal funding for abortion, but there is no such restriction on individual states. Seventeen states currently fund abortions under their Medicaid programs, and Medicaid-funded abortions have increased consistently over the last five years. Angry that you may be called upon to pay for abortion? Well, if you live in New York, California or 15 other states spread across the country, then you probably already do.

There is no shortage of misleading reporting claiming the Supreme Court ruling denies access to contraception coverage for women. Nothing could be further from the truth. In fact, Burwell v. Hobby Lobby may even lead to legislation or another executive diktat from Barack Obama that would provide free and total contraception and abortifacient coverage for women seeking such services but denied by their employer-provided insurance. Such an action could set up more legal challenges down the road. The bottom line is, one way or another, leftists want taxpayers to shoulder the burden for their social engineering, and they’ll do whatever they deem necessary to make that happen.

While the Hobby Lobby ruling made big news, it hasn’t fundamentally changed the culture war battlefield. Only closely held companies – those at least 50% owned by five or fewer people – can take advantage of the Supreme Court’s ruling. This does encompass more than 90% of American companies, though.

Predictably, leftists are spewing outrage. House Minority Leader Nancy Pelosi (D-CA) called the decision “a gross violation of workers’ religious rights.” And her blathering is a gross misrepresentation of the case. She added, “SCOTUS took an outrageous step against women’s rights, setting a dangerous precedent that permits corporations to choose which laws to obey.” Wrong. It’s the Obama administration that picks and chooses which laws to obey.

Hillary Clinton lamented that “employers can impose their religious beliefs on their employees,” something she called a “slippery slope.” Again, the Supreme Court relied in part on the law her husband signed. But worse, Clinton compared the ruling to abuse of women occurring in countries that are “unstable, anti-democratic and, frankly, prone to extremism.” In other words, employing a woman but asking her to pay for what happens in her own bedroom is just like female genital mutilation or subjugation in the Third World. War on Women™.

Sen. Elizabeth Warren (D-MA) claimed big corporations will “deny women access to basic care based on vague moral objections.” First, the moral objection isn’t “vague,” it’s specific to paying for taking the life of an unborn child. Second, no one is denying women access to basic care because access was never at issue.

Senate Majority Leader Harry Reid (D-NV) cried, “It’s time that five men on the Supreme Court stop deciding what happens to women.” Well, HHS was the entity that arbitrarily decided to make that call. The contraception mandate wasn’t even part of the original ObamaCare law.

Oh, and by the way, Hobby Lobby covers 16 different kinds of contraception.

In part to rebut all this nonsense, Hobby Lobby attorney Lori Windham said, “Hobby Lobby would love to stay out of this, and leave this decision to a woman and her doctor. It’s the federal government that told them that they had to be involved and cover these things.” Indeed, when the federal government takes over one-sixth of the U.S. economy and starts arbitrarily defining what happens in that sector, there is bound to be infringement on many liberties. While the Supreme Court utterly failed in its duty to stop the law as a whole two years ago, at least they got this one right.

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