The Affordable Care Act’s threat to religious liberty remains undiminished with the re-election of President Barack Obama.
Prior to Election Day, the number of lawsuits against the federal mandate to provide free insurance for contraception, sterilization and abortion-causing drugs had grown to 40, on behalf of some 100 plaintiffs — including the University of Notre Dame, the Archdiocese of Washington, Wheaton College, EWTN (the Register’s parent company) and Hobby Lobby stores.
Decisions had begun to trickle out of federal courts: Two had already issued injunctions on behalf of religious business owners to prevent them from being forced to subsidize contraception and abortion drugs like the "morning-after pill." Now that the presidential election is over, these fights will intensify.
This is the second time in six months that the mandate has escaped being swept away by national events. Last June, the U.S. Supreme Court came within one vote of invalidating the Affordable Care Act, which would have stripped federal authority for the mandate. But the act survived review, leaving the rapidly increasing number of lawsuits against the mandate as the last bulwark against the mandate’s affront to conscience.
Given its campaign promises, a Romney administration presumably would have rescinded the mandate or broadened protections for religious objectors. The Obama administration has given less hope that, in a second term, there will be any meaningful change to the mandate.
After all, this is the administration that authored the mandate to begin with and — heedless of public pleas from religious leaders across the spectrum of faiths — constructed a "religious employer" exemption so narrow that the ministries of Jesus Christ, St. Francis of Assisi and Mother Teresa would not qualify.
Back in February, the administration promised an "accommodation" for certain religious organizations, but it has left the details fuzzy and postponed finalizing it until August 2013.
But religious organizations trying to plan for the future are being harmed by the mandate now. And now that the election is past, many religious organizations are rightly skeptical that the alleged accommodation will resolve their basic concerns.
Going forward, the federal lawsuits against the mandate fall into two general camps.
On the one hand are some 30 lawsuits on behalf of nonprofit organizations. These include Catholic and evangelical schools like the aforementioned Notre Dame and Wheaton, along with The Catholic University of America, Ave Maria University, Franciscan University of Steubenville, Belmont Abbey College and Louisiana College.
They also include major Catholic archdioceses, Catholic social-service providers and the world’s largest Catholic broadcasting network (EWTN).
The federal government has not responded to the merits of these lawsuits, but has instead sought to have them thrown out as premature. The government says that its non-binding promise of an "accommodation" by August 2013 means that the courts should not hear the lawsuits now — even though the mandate is a final rule that is now harming these plaintiffs’ ability to plan, hire and budget.
Unfortunately, in two of the cases (Belmont Abbey and Wheaton), the courts have agreed with the government and dismissed the lawsuits. Those dismissals will be reviewed by the D.C. Circuit Court of Appeals in December.
On the other hand are increasing numbers of lawsuits by religious business owners. These include Catholic businesses such as Hercules Industries (a heating, ventilation and air conditioning manufacturer in Colorado) and Weingartz Supply Company (an outdoor power equipment company in Michigan), as well as Hobby Lobby, an Oklahoma-based arts-and-crafts chain founded and run by the Green family, who are evangelical Christians.
The rights of religious business owners like these have been utterly disregarded. They would not benefit from the promised "accommodation" (because it would apply only to nonprofits), and the mandate’s fines will start accumulating against them very soon.
For instance, in less than two months, Hobby Lobby faces fines of about $1.3 million per day if it refuses to include abortion-causing drugs in its plan.
The business owners have met with more success in court to date. Both Hercules and Weingartz have received preliminary injunctions from federal judges in Colorado and Michigan. A federal judge in Oklahoma heard Hobby Lobby’s injunction motion, and a decision is expected any day. (A fourth business, O’Brien Industrial, was denied an injunction and has appealed.)
Because these business lawsuits are not subject to any delays, the government has had to respond on the merits. Its response is startling.
The government has flatly stated that a person who goes into business to make a profit loses any right to exercise religion in his business pursuits. A kosher butcher, for instance, would presumably have no religious rights associated with his decision to stock only kosher products. A Bible seller would have no religious rights associated with the sacred texts she is selling.
The profit motive alone dissolves these individuals’ right to exercise religion. The government apparently wants to enforce its own theology of how God and mammon should mix. But its interpretation would bar individuals from providing for their families in ways consistent with their religious beliefs.
The government’s arguments are all the more remarkable for having no legal authority to support them.
The Supreme Court has long recognized that even corporations themselves may exercise free-speech rights. No one doubts, for instance, that The New York Times Company has the right to decide which articles to print and which advertisements to run.
The mandate suits are merely asking courts to recognize that business owners have some right to weave their faith into how they run their businesses — including the right not to cover drugs the owners believe implicates them in abortion. The government says they have no religious rights at all.
The administration’s unyielding posture towards religious business owners in its first term will presumably continue in its second. And the government has identified no feasible accommodation that would satisfy the concerns of other religious organizations like Notre Dame and EWTN that cannot insure drugs that violate their consciences. This election gave no indication that these violations will abate. It will be up to the courts to vindicate them.
Kyle Duncan is the general counsel for The Becket Fund for Religious Liberty.