Burwell, Sec. of HHS, v. Hobby Lobby Stores, Inc.


This page was last updated on July 10, 2014.


Apparently commenting on the Hobby Lobby (HL) ruling by the U.S. Supreme Court, local lefty leader Carl Davidson (KD) wrote on his Facebook page, “THOUGHT FOR THE DAY: The Supreme Court Five are step-by-step bringing a ‘Christian’ version of Sharia Law to the USA. Pass it on to your right wing relatives at July 4 family picnics....And if corporations now have religion, does that mean they have to get Baptized and go to Confession, and do Penance afterwards?”  Seriously, “a ‘Christian’ version of Sharia Law?”  The first religious beliefs protected by the law (RFRA – covered below) the Supreme Court (SC) said Obamacare violated were those of American Indians.

In fairness, KD isn’t alone with such shrill rhetoric.  The formerly “dead broke” <g> Hillary Clinton opined, “It is very troubling that a sales clerk at Hobby Lobby who needs contraception, which is pretty expensive, is not going to get that service through her employer’s health-care plan because her employer doesn’t think she should be using contraception.”  As you will read below, this comment is a lie or the result of willful ignorance of the HL case.  The “pretty expensive” portion of the comment depends on the chosen birth control method, with some pills costing as little as $12 for a 90-days supply.  During the same interview, Mrs. Clinton also said, “Part of the reason I was so adamant about including women and girls [in State Department efforts] is that they’re often the canaries in the mine.  It is a disturbing trend that you see in a lot of societies that are unstable, anti-democratic, and prone to extremism.  Women’s bodies are used as the defining and unifying issue to bring together people – men – to get them to behave in ways that are disadvantageous to women but prop up rulers.”  Is Mrs. Clinton really comparing a ruling that employers cannot be forced to pay for abortifacient drugs/devices if it violates the employer’s religious beliefs to “societies that are unstable, anti-democratic, and prone to extremism?”  Though folks like KD and Mrs. Clinton know the truth, they count on the trust and/or ignorance of their followers to accept and spread their view.

There’s a lot more to the Hobby Lobby case than most lefties want the population to know.  Here’s a summary, beginning with some background.

Obamacare requires preventive care provided by medical insurance plans to be “free” with no co-pays, et cetera.  (This drives up premiums, meaning not free, but that’s another discussion.)  Since Obamacare treats pregnancy prevention as it does disease prevention, it requires employer-based, medical-insurance plans to provide contraception products for free, including all 20 methods currently approved by the FDA.  Failure to comply with the Obamacare mandate can trigger business-killing fines.  Note, this requirement is a regulation implemented unilaterally by the Obama Administration; it is not in the Affordable Care Act (Obamacare, enacted solely by Democrats).  According to the syllabus portion of the SC decision, the products mandated by Obamacare “includ[e] the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.”  For those who believe life begins with conception (egg fertilization), paying for drugs that result in the destruction of an embryo is the same as paying for an abortion.

According to the decision syllabus, “The Religious Freedom Restoration Act of 1993 (RFRA) prohibits the ‘Government [from] substantially burden[ing] a person’s exercise of religion even if the burden results from a rule of general applicability’ unless the Government ‘demonstrates that application of the burden to the person – (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.’ … As amended by the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), RFRA covers ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’”  Note the “least restrictive means” requirement.  RFRA passed the Democrat-majority House via a “unanimous” voice vote and Democrat-majority Senate via a 97-3 roll-call vote.  President Bill Clinton (D) signed the bill into law.  Keep this in mind when you hear Democrats/leftists caterwauling about the decision, including Sen. Chuck Schumer (D-NY and RFRA’s sponsor when in the House), now-House Minority Leader Nancy Pelosi (D-CA, voted aye), now-Senate Majority Leader Harry Reid (D-NV, voted yea), and Hillary Clinton (Her “co-President” husband signed RFRA.).

Now let’s go to the Hobby Lobby complaint.

Even before Obamacare, and contrary to Mrs. Clinton’s comment, HL’s employee medical insurance plan included contraception products.  According to HL’s complaint, however, “Hobby Lobby’s insurance policies have long explicitly excluded – consistent with their religious beliefs – contraceptive devices that might cause abortions and pregnancy-termination drugs like RU-486.”  [Note: When reviewing its obligations under Obamacare, HL found two drugs (Plan B and Ella) had been slipping by its policy because the FDA didn’t consider them to be abortifacient because they acted by preventing embryo implantation.  When HL found out, it “immediately excluded the inconsistent drugs from its coverage.”]  According to the decision syllabus, under Obamacare, “Nonexempt employers are generally required to provide coverage for the 20 contraceptive methods approved by the Food and Drug Administration, including the 4 that may have the effect of preventing an already fertilized egg from developing any further by inhibiting its attachment to the uterus.”  The owners of HL believe abortion is wrong and say forcing them to pay for the four abortifacient drugs/devices would force them to violate their religious beliefs.  When the feds refused to budge, HL sued HHS on the basis Obamacare violated RFRA.  In forcing the owners of HL to violate their religious beliefs or face ruinous fines (about $475 million/year) and not meeting the “least restrictive means” requirement (more about that below), the SC ruled Obamacare violated RFRA.  Contrary to what lefties claim, the SC didn’t place any limits on a woman’s freedom.  The SC didn’t say women couldn’t buy the abortifacient drugs/devices or that someone else couldn’t pay for them, just that employers could not be forced to pay for abortifacient drugs/devices if it violates the employer’s religious beliefs.  Don’t ask me why the SC didn’t rule the mandate violated the First Amendment, not just RFRA.

While the White House and other lefties are faking outrage and making ridiculous claims as noted above, here’s something else they omit.  The mandate applied to HL only because it’s a for-profit business.  As noted in the decision, Obamacare grants waivers to the contraception mandate for non-profits if the mandate violates the employer’s religious beliefs.  If you read the SC opinion, you’ll find it mentioned the government already had other less-restrictive means at its hand to deal with this issue if the real intent was to make sure women had “free” access to abortifacient drugs/devices.  So why did Obamacare treat for-profit and non-profit businesses differently?  My opinion is the Obama Administration did this for ideological and political purposes, such as feeding the idiotic claim of a “war on women.”

Referring to the HL ruling, the White House spokesman said, “We disagree and the constitutional lawyer in the Oval Office disagrees with that conclusion from the Supreme Court.”  The ruling was about a statute (RFRA), not the Constitution.  Oops.

By focusing on the HL case, however, most of us don’t see the forest for the trees.  The original Constitution plus the Bill of Rights scream limited government, at least at the federal level.  Perhaps that “constitutional lawyer in the Oval Office” can show this engineer where the U.S. Constitution gives the federal government the power to force any employer to pay for any fringe benefit of any kind.  The Founding Fathers/Mothers must be spinning in their graves at how their vision of limited government has morphed into something where an employer must petition the Supreme Court to be exempted from being forced to pay for an employee’s abortifacient drugs/devices if it violates the employer’s religious beliefs.


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