In Which the Ventriloquists Feel Some Pushback

Update to a December post: In “Ventriloquists at Work”, I described cases in Connecticut and California in which government agencies are trying to tell pro-life pregnancy care centers what kind of signage they must post. The U.S. Supreme Court will take a look at the California case later this year.

Just yesterday, January 5, the U.S. 4th Circuit Court of Appeals refused to uphold a similar law targeting a pro-life clinic in Baltimore, Maryland. That’s good news for all of us First Amendment fans.

From a press release from the Becket Fund, whose attorneys are representing the clinic in Baltimore:

WASHINGTON, D.C. – A non-profit pregnancy center that helps low-income women in Baltimore prevailed over a discriminatory city ordinance today. In Greater Baltimore Center for Pregnancy Concerns, Inc. v. Mayor and City Council of Baltimore, the U.S. Court of Appeals for the Fourth Circuit protected the Center from being forced to violate its conscience by referring for abortions or posting government messages about abortion on its walls.

…In 2009, the City of Baltimore targeted the Center, which operates out of Catholic Church-owned property, demanding they display a sign stating that they “do not provide or make referrals for abortion or birth control services,” even though they already inform women in welcome papers and a lobby sign about the caring services they do provide for free and also that they do not offer abortions. Yet the City of Baltimore did not require abortion clinics to display the services they do not offer, such as adoption or prenatal care. The Fourth Circuit’s decision today criticized Baltimore for adopting “retributive speech restrictions” on pro-life speakers, calling the restrictions a “grave violation” of “our nation’s dearest principles.”

 Read the full statement from the Becket Fund. 

Note the date of the city ordinance: eight years ago. Eight years of litigation would force most nonprofit pregnancy care centers out of business. Maybe that’s one of the factors motivating ordinance supporters. Thumbs up to the Becket Fund for Religious Liberty and other public-interest law firms who take on such cases.

“Game-changer”: Supreme Court helps the Little Sisters, though mandate stands

For now, the Little Sisters of the Poor and the numerous other faith-based agencies fighting the HHS contraceptive mandate will NOT be subject to federal penalties for refusing to be a party (via employer-provided health insurance) to provision of goods and services that violate their faith. A unanimous U.S. Supreme Court decision today made that clear, while sending thirteen challenges to the mandate back to lower courts.

“This is a game-changer,” said Mark Rienzi of the Becket Fund, representing the Little Sisters. “The Court has accepted the government’s concession that it can get drugs to people without using the Little Sisters. The Court has eliminated all of the bad decisions from the lower courts. And the Court has forbidden the government from fining the Little Sisters even though they are refusing to bow to the government’s will. It is only a matter of time before the lower courts make this victory permanent.”

I admire Mr. Rienzi’s optimism. I hope he’s right.

The eight Justices declined to rule on the legality of the mandate, which is a regulation that followed the federal Obamacare fiat that contraception for women is a basic “preventive” health service. This federal policy that women are basically broken and in need of fixing is left untouched by today’s Court action.

The federal government can go ahead and provide the coverage for contraceptives and abortion-inducing drugs and devices, under today’s Court action.

The bad news is that this means no majority could be mustered in the Court to reject the mandate altogether. That was the “decision” of the day: the mandate is still legal, despite numerous carve-outs and exemptions. From SCOTUSblog:

“The two issues that the Court had agreed to rule on, and then left hanging at least for now, were whether the [Affordable Care Act] mandate violates the federal Religious Freedom Restoration Act by requiring religious non-profits that object to contraceptives to notify the government of that position, and whether the move by the government to go ahead and arrange access to those benefits for those non-profits’ employees and students was the ‘least restrictive means’ to carry out the mandate.”

“A decision not to make a decision is still a decision.” Those words were drummed into my head by my public-policy professor more than three decades ago as I studied landmark Supreme Court cases. An important non-decision was made today: the mandate stands. So do at least thirteen challenges to it, though, and that’s good news.

Supreme Court, minus Scalia, takes on religious liberty

If I could see the Supreme Court Justices today for one minute, all I’d say to them is this: leave the nuns alone, already. The president’s not listening. Maybe the court will.

The fuss over Obamacare’s contraceptive mandate may have been off the front pages for awhile, but the Little Sisters of the Poor are raising the mandate’s visibility again. Good for them. They and several other petitioners are at the U.S. Supreme Court today, politely asking the Justices to prevent the federal government from forcing the petitioners to act in violation of their faith.


The contraceptive mandate (also known as the HHS mandate, in a backhanded tribute to the federal agency that promoted it) is based on Obamacare’s definition of contraception as a “preventive” service for women. (Not for men, mind you.) The idea was for insurance plans, including employer-provided plans, to cover contraception without a co-pay. Employers offering health insurance as a benefit would thus have to subsidize contraceptive use by employees.

The Little Sisters, women one and all, are having none of it. So far, litigation has spared them the punishment the government promises to mete out to balky employers. Today, the litigation begins its final stage.

Contraceptives include abortion-inducing drugs and devices. You’ll recall that the Hobby Lobby decision, decided on extremely narrow grounds, rested on the company’s willingness to pay for most kinds of contraception but not the ones that actually induce abortion.

Where does that leave Catholic entities like the Little Sisters, when providing contraception goes against their religious beliefs? Making contraception available under their health insurance for employees, even indirectly, makes the Sisters complicit in activities their religion sees as immoral. When the federal Obamacare exchanges exist, allowing people to buy insurance independent of their employers, why should employers be threatened with ruinous fines for not bowing to the mandate?

This isn’t solely a Catholic thing. Other petitioners today include Baptist and Nazarene institutions. What unites the petitioners is a firm belief that the government has no business telling them what their respective religions allow. Read more about the challenges to the mandate on the web site of the Becket Fund for Religious Liberty.

The feds have come up with one supposed “accommodation” after another in an attempt to make religious objections to the mandate go away.  The feds have failed.

One fact is particularly damaging to the government’s dogged insistence that “free” contraceptives for women are a basic right: companies and agencies employing a total of one-third of Americans are already exempt from compliance with the mandate. The federal government has let the military, the city of New York, and Exxon off the hook, to name just a few. For some reason, though, the Little Sisters of the Poor have to go to court to vindicate their rights.

The Sisters’ ministry is to the elderly poor. Fines for noncompliance with Obamacare will harm not only the Sisters themselves but the people they serve. “So cover the contraceptives,” say mandate supporters, sounding a bit thuggish. Nice clients you have there. It’d be a shame if anything happened to them.

The Supreme Court split 5-4 in favor of Hobby Lobby, with an extraordinarily bitter dissent from Justice Ginsburg. One of the five in the majority, Antonin Scalia, has since died and has not been replaced. A 4-4 split would leave lower court decisions intact, which would be bad for today’s petitioners.

The lawyers for the petitioners can do math. They know the odds. They also know the First Amendment is alive and well, including protection for freedom of religion. As with the rest of the Bill of Rights, the First Amendment was not put in place to protect selected majorities but to protect all Americans.

You go, girls.

First HHS Mandate cases get to U.S. Supreme Court

In 1969, in the Tinker case involving the First Amendment rights of students in a public school, the U.S. Supreme Court famously ruled, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”

Today, forty-four years later, the Supreme Court has agreed to take two cases that may lead to a ruling on whether First Amendment rights must be shed at a business’s front door. The Court will hear arguments in the Spring of 2014, and a decision could come by the end of June.

Mennonites, Evangelical Christians plead their case

Hobby Lobby and Conestoga Wood Specialties are two of the for-profit businesses that have gone to court in an effort to overturn Obamacare’s mandate that all businesses offering health insurance to employees must help pay for coverage for abortion-inducing drugs, including those marketed as contraceptives. Strictly a Catholic concern? Hardly. The family that owns Hobby Lobby professes evangelical Christianity in the Protestant tradition, while the owners of Conestoga are Mennonites.

The Becket Fund, a public-interest law firm representing Hobby Lobby (Sebelius v. Hobby Lobby Stores, Inc.) issued a statement today in response to the Court’s decision to take the cases, reading in part:

“This is a major step for the Greens and their family businesses in an important fight for Americans’ religious liberty,” said Kyle Duncan, general counsel of the Becket Fund for Religious Liberty and lead lawyer for Hobby Lobby. “We are hopeful that the Supreme Court will clarify once and for all that religious freedom in our country should be protected for family business owners like the Greens.”

In July, a lower federal court granted Hobby Lobby a preliminary injunction preventing the government from enforcing the HHS mandate requiring the family businesses to provide in the employee health insurance plan two drugs and two devices that are potentially life-terminating.

The Greens and their family businesses – who have no moral objection to providing 16 of the 20 FDA-approved contraceptives required under the HHS mandate and do so at no additional cost to employees under their self-insured health plan – then took the unusual step in October of joining the government in asking the U.S. Supreme Court to review the case, despite the family’s victory in the U.S. Tenth Circuit Court of Appeals.

The other case taken by the Court, Conestoga Wood Specialties v. Sebelius, comes from a different Circuit Court of Appeals than the Hobby Lobby case. The two cases were decided differently in lower courts, and now the Supreme Court will consider both at once.

“Accommodations” and questions

The HHS Mandate, part of the regulations accompanying Obamacare, raised religious liberty issues as soon as it was announced in early 2012. The Administration made what it called an “accommodation” with religious employers, with the definition of “religious employer” left to the federal government. When that proved insufficient to meet the concerns of Americans who take their religious liberty seriously, the Administration tweaked its “accommodations” further, until finally last June the Mandate was declared “final.”

As a result, lawsuits are abounding all over the country. Some have been filed by nonprofit organizations, some by educational institutions, some by entities affiliated with a church but legally distinct from it. Owners and managers in each case hold religious beliefs that conflict with the demands of the Mandate.

I can’t predict what questions will be asked during arguments before the Court. Some issues, though, will have to be decided eventually, either in these cases or one of the others now pending.

Does a religious liberty interest apply to an individual acting as owner of a business, as well as to an individual acting alone?

If the federal government calls a certain drug “contraceptive” when it is in fact abortifacient, will the First Amendment apply to an individual who recognizes that the government is acting in error?

Will the Court reach into the underpinning of the Mandate, and rule on the definition of contraception as “preventive care” under Obamacare?

The web site may be down, but the Mandate stands

Obamacare’s biggest roadblock to date has proven to be the inadequate web site that is interfering with signups for health insurance. Nothing about a lousy web site wipes out 15,000 pages of Obamacare regulations, including the Mandate.

According to the Becket Fund, there are 84 lawsuits challenging the constitutionality of the Mandate. It will take more than one Supreme Court decision to address them all. The first two cases have made it over a big hurdle, though. Stay tuned.

Will the real mandate please stand up?

I had hoped to post some straightforward news here for you to reconcile two seemingly contradictory announcements from Washington about the “Affordable” Care Act. I’m sorry to say that I’ve fallen short so far. I welcome comments from readers who can translate all this for our mutual benefit. Everything about the ACA will hit home in New Hampshire just as in the other 49 states.

June 28: The U.S. Department of Health and Human Services posted its “final” rule on the HHS mandate, saying that employers who refuse to subsidize contraception and abortion-inducing agents for their female employees are still subject to sanctions. I recommend this advisory from the Becket Fund for Religious Liberty about so-called “accommodations.”  

July 2: The U.S. Treasury Department announced that the reporting requirements imposed on employers by ACA will be suspended until 2015. Those requirements are in themselves a mandate. So we have a paperwork mandate that won’t be enforced, by order of the executive branch, acting without the consent of the legislative branch, which passed the ACA.

Confusing, if not dizzying. According to the Becket Fund statement cited above, the July 2 announcement “says nothing about the $100 per employee daily tax penalty [for failing to comply with the HHS mandate], which is in a different statute and subject to an entirely separate reporting requirement not mentioned in the Treasury statement.”

I take all this as an affirmation by the current Administration that concerns over excess paperwork are a good reason to change a mandate, while concerns about religious liberty are not.