Hobby Lobby and its impact for us

Monday the Supreme Court, by a 5-4 vote, ruled in favor of Hobby Lobby stores and Conestoga Wood Specialties in a decision regarding the federal Department of Health and Human Services (HHS) mandate requiring employers to include contraceptive coverage (including aborifacients) in their employees’ health insurance policies (please read article on page four for the details). Anchor columnist Dwight Duncan had prepared a “friend of the court” brief from Massachusetts Citizens for Life (MCFL) on behalf of these companies. Anne Fox, president of MCFL, wrote Monday, “I think MCFL’s amicus brief, citing the history of religious liberty in the colonies, which was the basis for the views of our founding fathers, helped to win this case.  Again, we are very grateful to Dwight Duncan and the law students who helped him write the brief!”

We do appreciate the victory, but it is not as broad as we would have hoped. For one thing, four of the court’s members voted against us, so should one member of the court majority on this case leave the court due to death or retirement, a new justice could be appointed who could help overturn this decision (this is why thinking about the Supreme Court is so important to do when voting for president [since the president names the members] and for senator [since the senators can, and have in the past, blocked a nomination]). 

The majority decision in Hobby Lobby said that Hobby Lobby, Conestoga and other companies which have religious objections to the taking of a human life cannot be forced to pay for abortifacient contraception. However, the decision says that this type of contraception can be provided either by the government paying for it (Anne Fox, in her email, wrote, “It is assumed that the Obama Administration will step in to pay, so now we’ll all be paying!”) or via the “accommodation” which HHS continues to insist that Catholic and other religious institutions (which are not church buildings themselves, but parish schools, Church-run charitable institutions, etc.) use, which would have the insurance companies pay for the contraceptive coverage.  Various arms of the Catholic Church have active lawsuits in various courts at present trying to have this “accommodation” eliminated.

The court’s majority suggests using the “accommodation” approach for companies like Hobby Lobby. “In fact, HHS has already devised and implemented a system that seeks to respect the religious liberty of religious nonprofit corporations while ensuring that the employees of these entities have precisely the same access to all FDA-approved contraceptives as employees of companies whose owners have no religious objections to providing such coverage. The employees of these religious non-profit corporations still have access to insurance coverage without cost-sharing for all FDA-approved contraceptives; and according to HHS, this system imposes no net economic burden on the insurance companies that are required to provide or secure the coverage.”

The fact that the court’s majority, which included frequent friends of the Church, such as Antonin Scalia, would suggest that the “accommodation” might be a possible approach for the government to use with Hobby Lobby does raise concerns that when the Catholic Church ends up before the Supreme Court to fight the HHS mandate, we will either lose or the case will not even be accepted.

However, there may be hope. In footnote nine of the court’s decision, Justice Samuel Alito wrote, “In a separate challenge to this framework for religious nonprofit organizations, the court recently ordered that, pending appeal, the eligible organizations be permitted to opt out of the contraceptive mandate by providing written notification of their objections to the Secretary of HHS, rather than to their insurance issuers or third-party administrators. See Little Sisters of the Poor v. Sebelius, 571 U. S. Docket 13A691 (2014).” So, the Supreme Court had given us at least temporary relief from the mandate.

Archbishop Joseph E. Kurtz of Louisville, president of the U.S. Conference of Catholic Bishops, and Archbishop William E. Lori of Baltimore, chairman of the U.S. bishops’ Ad Hoc Committee for Religious Liberty, issued a statement Monday, in which they said, “We welcome the Supreme Court’s decision to recognize that Americans can continue to follow their faith when they run a family business. Now is the time to redouble our efforts to build a culture that fully respects religious freedom. The court clearly did not decide whether the so-called ‘accommodation’ violates [the Religious Freedom Restoration Act] when applied to our charities, hospitals and schools, so many of which have challenged it as a burden on their religious exercise. We continue to hope that these great ministries of service, like the Little Sisters of the Poor and so many others, will prevail in their cases as well.”

Alito’s decision explained what abortifacient birth control is. “Although many of the required, FDA-approved methods of contraception work by preventing the fertilization of an egg, four of those methods (those specifically at issue in these cases) may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.” In footnote seven Alito added, “The owners of the companies involved in these cases and others who believe that life begins at conception regard these four methods as causing abortions, but federal regulations, which define pregnancy as beginning at implantation, see, e.g., 62 Fed. Reg. 8611 (1997); 45 CFR §46.202(f) (2013), do not so classify them.” The Catholic Church, of course, would agree with these companies.

Father Dylan Schrader, writing in the Homiletic and Pastoral Review earlier this year, said that the religious liberty issues involved in the HHS mandate are important, but “To focus only on this aspect of the mandate, however, is to miss an even more foundational point, namely, that contraception, sterilization, and abortion are really evil. When it comes to any policy that directly seeks to facilitate contraceptive acts and abortions, we cannot limit ourselves to an approach that would imply that such a policy is acceptable as long as it isn’t forced on Catholics (or other religious employers). Contraception, sterilization, and abortion are always wrong for everybody, regardless of their religious beliefs. We should be seeking to eradicate these evils altogether, not merely seeking an exemption from cooperating in them ourselves. The Catholic position is not that Catholics should not contracept or abort; it is that no one should contracept or abort.”

So, we can rejoice that Hobby Lobby and Conestoga won their lawsuits, but we have a lot of work to do –— work of prayer and penance, work of better informing ourselves about Church teaching, work of following Christ in our familial lives. 

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