Highlights from Hobby Lobby/Conestoga Wood Oral Arguments


    By Hadley Heath

    Did you miss the Hobby Lobby/Conestoga Wood oral arguments yesterday?  Fear not!

    You can read the transcript here. Or, you can check out these highlights below:

    1. Justice Sotomayor comes out swinging against Hobby Lobby's case:

    JUSTICE SOTOMAYOR: Is your claim limited to sensitive materials like contraceptives or does it include items like blood transfusion, vaccines?  For some religions, products made of pork?  Is any claim under your theory that has a religious basis, could an employer preclude the use of those items as well? 


    JUSTICE SOTOMAYOR: But isn't there another choice nobody talks about, which is paying the tax, which is a lot less than a penalty and a lot less than the cost of health insurance at all?  These employers could choose not to give health insurance and pay not that high a penalty ­­not that high a tax. [HealthCareLawsuits note: only $2,000 per worker per year]


    2. Justice Alito points out that there are less-restrictive means.

    JUSTICE ALITO:  Are there ways of accommodating the interests of the women who may want these particular drugs or devices without imposing a substantial burden on the employer who has the religiousobjection to it? 


    MR. CLEMENT:  There are ample less restrictive alternatives, Your Honor. 


    3. A skeptical Justice Kennedy asks whether corporations could be forced to pay for abortions.


    JUSTICE KENNEDY:  Under your view, a profit corporation could be forced ­­ in principle, there are some statutes on the books now which would prevent it, but could be forced in principle to pay for abortions. 


    GENERAL VERRILLI:  No.  I think, as you said, the law now ­­ the law now is to the contrary. 


    JUSTICE KENNEDY:  But your reasoning would permit that. 


    GENERAL VERRILLI:  Well, I think that ­­ you know, I don't think that that's ­­ I think it would depend on the law and it would depend on the entity.  It certainly wouldn't be true, I think, for religious nonprofits.  It certainly wouldn't be true for a church. 


    JUSTICE KENNEDY:  I'm talking about a profit corporation.  You say profit corporations just don't have any standing to vindicate the religious rights of their shareholders and owners.


    GENERAL VERRILLI:  Well, I think that if it were for a for­profit corporation and if such a law like that were enacted, then you're right, under our theory that the for­profit corporation wouldn't have an ability to sue. 


    4. The government's lawyer admits that birth control is in fact, not free:


    GENERAL VERRILLI: ...The second point is that you're talking about a very open­ended increase in the cost to the government.  Now, we don't know how much that cost would be.  The reason is because, since this wasn't litigated in the lower courts, there's not a record on it.  So I can't tell you what that ­­ what that increased cost is going to be, but it could be quite considerable. 


    JUSTICE SCALIA:  You're talking about, what, three or four birth controls, not all of them, just  those that are abortifacient.  That's not terribly expensive stuff, is it? 


    GENERAL VERRILLI:  Well, to the contrary.  And two points to make about that.  First, of course  the ­­ one of the methods of contraception they object  to here is the IUD.  And that is by far and away the method of contraception that is most effective, but has  the highest upfront cost and creates precisely the kind of cost barrier that the preventive services provision is trying to break down. 


    JUSTICE ALITO:  I thought that.­­ I was taken by your answer.  I thought it was the government's position that providing coverage for the full range of contraceptives and other devices and drugs that are covered here is actually financially neutral for an insurance company, that that reduces other costs that they would incur. 


    5. Justice Alito asks about kosher slaughterhouses in Denmark. (Yep - that happened!) And Justice Kennedy joined in.


    JUSTICE ALITO:  What about the implications of saying that no for­profit corporation can raise any sort of free exercise claim at all and nobody associated with the for­profit corporation can raise any sort of free exercise claim at all?  Let me give you this example.  According to the media, Denmark recently prohibited kosher and halal slaughter methods because they believe that they are inhumane.  Now, suppose Congress enacted something like that here.  What would the ­­ what would a corporation that is a kosher or halal slaughterhouse do?  They would simply ­­ they would have no recourse whatsoever.  They couldn't even get a day in court.  They couldn't raise a RFRA claim.  They couldn't raise a First Amendment claim. 


    GENERAL VERRILLI:  Well, I'm not sure they couldn't raise a First Amendment claim, Justice Alito. I think if you had a targeted law like that, that targeted a specific religious practice, that ­­ I don't think it is our position that they couldn't make a free exercise claim in that circumstance and so ­­


    JUSTICE ALITO:  Why is that ­­


    JUSTICE KENNEDY:  Well, but you're getting away from the hypothetical.  Say ­­ Justice Alito's hypothetical was that the impetus for this was humane  treatment of animals.  There was no animus to religion at all, which in the Church of Lukumi, there was an animus to the religion.  So we're taking that out of the hypothetical. 


    JUSTICE ALITO:  Exactly. 


    6. A skeptical Justice Kennedy points out that this issue wasn't even decided by Congress.


    JUSTICE KENNEDY:  Now, what ­­ what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined? I recognize delegation of powers rules are somewhat more abundant insofar as their enforcement in this Court. But when we have a First Amendment issue of this consequence, shouldn't we indicate that it's for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes. 


    A ruling is expected in June. Stay tuned to HealthCareLawsuits.org for more updates on this case and others.  


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    DC Circuit Court of Appeals Hears Halbig


    By Hadley Heath

    This week the DC Court of Appeals heard oral arguments in Halbig v. Sebelius. Check out my take in Doublethink Magazine:

    The law’s challengers in Halbig have illustrated that the original language and intent of the Affordable Care Act was to limit the law’s individual subsidies and tax credits to states that elected to establish their own health benefit exchanges.  This way, the subsidies would act as an enticement to states to opt in, like several other provisions in ObamaCare.  This “carrot” idea came up in oral arguments Tuesday, although the three judges clearly differed on their interpretations.

    The judges also differed on the government’s argument that the federally-operated exchanges were meant to act as “substitutes” for the state-operated exchanges. Judge Harry T. Edwards, a Jimmy Carter appointee, seemed to agree with the government that the overall intent was for subsidies to be available to all individuals between 100 and 400 percent of the federal poverty level regardless of which state in which they reside, or whether their state lawmakers chose to establish a state-run exchange.

    But if Congress didn’t make this clear in the statute (or in the legislative history), it’s hard to see this as a reasonable interpretation.  Judge Edwards was alone on the bench in his outspoken support for the law.

    Read my entire column here

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    Hobby Lobby/Conestoga Oral Argument Tomorrow


    By Hadley Heath

    Tomorrow the Supreme Court will hear oral arguments in the cases brought against ObamaCare's contraception mandate by Hobby Lobby Stores, Inc., and Conestoga Wood Specialities Corp.

    The law's challengers will be represented by attorney Paul Clement, and the government's side will be argued by Solicitor General Donald Verrilli, Jr. 

    At the heart of these cases is religious freedom, and many questions are raised: Can a business exercise religious freedom? Are the religious rights of business owners violated when government forces business to follow laws against their conscience? Do Americans forfeit their religious freedom when they act as a business?

    What is mind-boggling to me is that, as noted in an amicus brief from the Independent Women's Forum, women who work for companies like Hobby Lobby or Conestoga Wood were free - and would remain free after any ruling in these cases - to buy contraceptives of all kinds with their own money.  These cases are not about a conflict of interest between religious employers and contraceptive-using employees. Both should be free to live in accordance with their consciences as they relate to sex, life, and contraceptives, and both should be able to use their resources in a way that reflects those values. The mandate would force religious employers to go against their conscience... No one (in this case) is attempting to stop women from seeking out and purchasing the drugs of their choice.

    Lyle Dennison at SCOTUSblog offers an in-depth analysis of the arguments here. He importantly notes that these cases will have little to bear over the fate of ObamaCare at large:

    Only one thing, perhaps, is certain as the argument in this case approaches: whatever the Court decides, it will not decide the fate of the Affordable Care Act.  The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether.  None of that depends upon the outcome of this case.

    The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so.  All that is at issue is who must obey the contraceptive mandate.

    ObamaCare would not be struck down if the law's challengers prevailed in these cases. But it would strike a blow to the philosophy that undergirds government involvement in the health sphere: A one-size-fits-all system will inevitably lead to conflicts in values and conscience. These cases illustrate how problematic it is when choices that should be personal and free are mandated for all. 

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    Independent Women's Forum Files Amicus Brief in Hobby Lobby/Conestoga Cases


    By Hadley Heath

    (Washington, D.C.) – The Independent Women’s Forum (IWF) has filed an Amicus Curiae brief in support of Hobby Lobby, Inc., and Conestoga Wood Specialties Corp., who are challenging the ObamaCare contraception mandate before the Supreme Court.

    In contrast to the 56 other briefs filed in support of Hobby Lobby and Conestoga Wood, the IWF’s brief stresses the mandate’s consequences for women’s health and employment freedom rather than emphasizing religion.

    The IWF, an organization that supports limited government, free-markets, and individual responsibility, opposes ObamaCare coverage mandates, both for individuals and for employer-sponsored plans. The IWF’s statement of interest argues that the HHS mandate works contrary to women’s interests and will restrict women’s flexibility to customize their compensation and benefits.

    However, the main focus of the brief, written by University of Missouri law professor (and former clerk for Chief Justice John Roberts) Erin M. Hawley, is a technical legal issue: the Anti-Injunction Act. The Anti-Injunction Act was enacted in 1867 to ensure the prompt collection of taxes and to protect the public treasury. It enacts a pay-first litigate-later approach to challenge one’s income taxes.

    The IWF argues that the Anti-Injunction Act is not jurisdictional and poses no bar to resolution of the critical constitutional questions at issue in the cases.

    Hadley Heath, Director of Health Policy for the IWF, explained:

    “This lawsuit has wrongfully been depicted as a conflict between religious employers and women, but IWF filed an amicus brief because we believe this mandate actually works contrary to women’s interests.

    “IWF supports women’s choice to use or not use contraception and believes that American women already have access to various forms of birth control. If the government wants to do more to increase access, there are better – less restrictive – means than requiring employers to provide the coverage.”

    “The HHS mandate will come with unintended consequences for women and for public health. By removing price competition from birth control markets, the mandate will drive up the cost of drugs for women who remain uninsured, and may decrease condom use among those who are insured.”

    “This case is about much more than contraception. It is about the principles of liberty that animate our Constitution. It is about empowering women to choose the healthcare and salary options that best fit their needs. And it is about employers, many of them women, being able to follow their deeply held religious beliefs.

    “IWF believes that all of these arguments should not be foreclosed solely because the penalties imposed by the contraception mandate are made payable to the IRS.  The Government does not argue that the Anti- Injunction Act applies to this case.  Accordingly, the defense is forfeited and poses no bar to resolution of the critical constitutional questions at issue here.

    The IWF has been monitoring and keeping the public informed about constitutional challenges to ObamaCare since the law’s passage, and in October 2010 launched a Web site to track the more than 100 cases filed against various aspects of ObamaCare. This project can be found online at http://healthcarelawsuits.org

    To read the IWF's amicus brief, click here.

    For complete list of amicus briefs visit The Becket Fund and Alliance Defending Freedom.

    Follow these links to read the IWF’s fact sheet and policy brief about the HHS mandate.

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    Judge Dismisses Halbig Case


    By Hadley Heath

    Today U.S. District Court Judge Paul Friedman threw out the Halbig v. Sebelius case that challenged subsidies flowing through the federally-established exchange(s). 

    The Plaintiffs argued that the text of the Affordable Care Act only authorized subsidies through exchanges that states elected to establish. These exchanges derive their authority from one section of the law (Section 1311) while federally-established exchanges (the default if a state elects not to create its own) are authorized in another section (Section 1321).  The Plaintiffs also suggested that this was intentional: Congress wanted to incentivize states to create their own exchanges, and these subsidies were the carrot.

    Judge Friedman disagreed. He was quoted in The Hill today:

    "The plain text of the statute, the statutory structure, and the statutory purpose make clear that Congress intended to make premium tax credits available on both state-run and federally-facilitated Exchanges."

    This is certainly a setback for the law's challengers, but not the end of the road. There are other lawsuits in other districts that challenge these subsidies, and lead attorney for Halbig has already promised to appeal this decision.

    Read more here. 



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