image1374(by the Associated Press at New York Daily News) – …Two years after the entire Affordable Care Act [ObamaCare law] survived the Supreme Court’s review of a challenge to the law by a single vote, the justices are hearing arguments today in a religion-based challenge from family-owned companies that object to covering certain contraceptives in their health plans as part of the law’s preventive care requirement.

Health plans must offer a range of services at no extra charge, including all forms of birth control for women that have been approved by federal regulators.

…The companies involved in the high court case are willing to cover most methods of contraception, as long as they can exclude drugs or devices that the government says may work after an egg has been fertilized. [At issue is whether for-profit companies such as Hobby Lobby are entitled to the same religious protections as people or churches.]

The largest company among them, Hobby Lobby Stores Inc., and the Green family that owns it, say their “religious beliefs prohibit them from providing health coverage for contraceptive drugs and devices that end human life after conception.” [Hobby Lobby covers most forms of contraception in its health plan, including the pill and sterilization. It objects to a requirement that it include certain emergency contraceptives and intrauterine devices, which Hobby Lobby’s owners consider a form of abortion.]

Oklahoma City-based Hobby Lobby has more than 15,000 full-time employees in more than 600 crafts stores in 41 states. The Greens are evangelical Christians who also own Mardel, a Christian bookstore chain.

The other company is Conestoga Wood Specialties Corp. of East Earl, Pa., owned by a Mennonite family and employing 950 people in making wood cabinets.

The Obama administration says a victory for the companies would prevent women who work for them from making decisions about birth control based on what’s best for their health, not whether they can afford it. The government’s supporters point to research showing that nearly one-third of women would change their contraceptive if cost were not an issue; a very effective means of birth control, the intrauterine device, can cost up to $1,000. …

The contraceptives at issue before the court are the emergency contraceptives Plan B and ella, and two IUDs.

The government also argues that employers would be able to invoke religious objections under the 1993 Religious Freedom Restoration Act to opt out of other laws, including those governing immunizations, minimum wages and Social Security taxes. The Supreme Court previously has rejected some of these claims in cases decided before the law’s enactment.

The issue is largely confined to family-controlled businesses with a small number of shareholders.

A survey by the Kaiser Family Foundation found 85 percent of large American employers already had offered such coverage before the health care law required it. There are separate lawsuits challenging the contraception provision from religiously affiliated hospitals, colleges and charities.

The federal appeals court in Denver ruled in favor of Hobby Lobby. Conestoga Wood lost its case at the federal appeals court in Philadelphia.

In many respects, Hobby Lobby is the sort of company Obama would be [holding up as a positive example] as he advocates for corporate responsibility and a higher minimum wage.  Hobby Lobby’s base pay for full-time employees is almost twice the federal minimum wage of $7.25 an hour. They are offered health insurance, dental coverage and a retirement savings plan. Hobby Lobby stores close most nights at 8 p.m., which the company says is aimed at allowing employees to spend more time with their families.

The Greens say they have no desire to make health care decisions for their employees, but neither do they want to contribute to services to which they object.

One key issue before the justices is whether profit-making corporations may assert religious beliefs under the 1993 religious freedom law or the First Amendment provision guaranteeing Americans the right to believe and worship as they choose. The court could skirt that issue by finding that the individuals who own the businesses have the right to object.

The justices still would have to decide whether the birth control requirement really impinges on religious freedom, and if so, whether the government makes a persuasive case that the policy is important and is put in place in the least objectionable way possible.

Hobby Lobby and Conestoga Wood say the burden they face is clear in the $100-a-day fine for each employee they would have to pay for not complying with the contraception provision. By contrast, businesses that choose not to offer health insurance at all can pay a tax [fine] of $2,000 a year for each employee.

One potentially underemphasized aspect of the case is that there is no requirement that employers offer health insurance. They could pay the tax [fine], which will be cheaper in many instances, according to Georgetown University’s Martin Lederman, who has advanced the argument.

But Mark Rienzi, a Catholic University professor who is on the Hobby Lobby legal team, said Hobby Lobby would be at a competitive disadvantage with other employers who offer health insurance. “Their view is and has always been that they want to take really good care of their employees and their families,” Rienzi said.

The companies say they believe life begins at conception, and they oppose only birth control methods that can prevent implantation of a fertilized egg in the uterus, but not other forms of contraception. …

Reprinted here for educational purposes only.  May not be reproduced on other websites without permission from the New York Daily News. 


1. In how many states does Hobby Lobby own stores? How many stores and employees does Hobby Lobby have?

2. To what part of the ObamaCare law does the Green family object? Be specific.

3. What argument does the Obama administration use for forcing private business owners to pay for employees’ use of abortifacients like the morning after pill by including this requirement in the Affordable Care Act (ObamaCare)?

4. How much would Hobby Lobby have to pay in fines per employee per year for refusing to comply with the requirement in the law that their employee medical insurance plans offer all contraceptives for free?

5. What is the key issue before the justices?

6. Do you think that companies who would not pay for employees’ choice of contraceptive harm women’s health? Explain your answer.

7. From para. 18: “One potentially underemphasized aspect of the case is that there is no requirement that employers offer health insurance. They could pay the tax [fine], which will be cheaper in many instances, according to Georgetown University’s Martin Lederman, who has advanced the argument.”   Supporters of religious liberty could argue that just as employers could stop offering medical insurance to employees as a way to avoid having to pay for some contraceptives, there is no requirement that employees get their health insurance through their employers; employees who want the contraceptives could always purchase their own insurance on the ObamaCare health exchange so they could obtain any contraceptive they wanted to use for free.
Is this a reasonable argument? Explain your answer.

8. Mr. Green says the court fight prompted the family to bid for an 1809 letter by founding father Thomas Jefferson. The letter reads: “No provision in our constitution ought to be dearer to man than that which protects the rights of conscience against the enterprizes of the civil authority.” Do you agree with President Jefferson’s assertion? Explain your answer.


The companies bring the claim under the Religious Freedom Restoration Act, a 1993 statute intended to nullify a decision by Justice Scalia denying religious exemptions from generally applicable laws. The 1993 law refers to “persons,” and the Obama administration disputes whether that includes for-profit companies like Hobby Lobby and Conestoga Wood.

Even if the court finds that commercial enterprises have religious rights, they would have to pass a further legal test to be exempt from the regulation.

The companies’ owners, who are, respectively, evangelical and Mennonite Christians, say they consider emergency contraceptives—”morning after” pills and some intrauterine devices—to be forms of abortion, which is anathema to their religious beliefs. For the corporations to win, the court must find that including such contraceptives in company-sponsored insurance would “substantially burden” their owners’ religious exercise, unjustified by a “compelling government interest.”

That language derives from Justice Brennan’s 1963 opinion in Sherbert v. Verner, which concerned a Seventh-day Adventist who was fired from a South Carolina textile mill and then denied unemployment-insurance benefits because she refused to work on Saturday, her faith’s sabbath.

South Carolina’s policy “forces her to choose between following the precepts of her religion and forfeiting benefits,” or abandoning her beliefs “in order to accept work,” Justice Brennan wrote. “Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship.”

South Carolina argued its policy was aimed at preventing malingerers from collecting unemployment benefits while shirking available work. Such fears were speculative, Justice Brennan wrote, but “if the possibility of spurious claims did threaten to dilute the fund and disrupt the scheduling of work,” the state still must show that it had “no alternative” way to prevent fraud “without infringing First Amendment rights.”

Nearly 30 years later, the Supreme Court confronted a similar issue in Employment Division v. Smith, when Oregon denied unemployment benefits to adherents of a Native American religion who used peyote, a controlled substance, in their ceremonies. Writing for the majority—and over Justice Brennan’s dissent—Justice Scalia narrowed the Sherbert precedent to near irrelevance.

The 1963 ruling applied only to unemployment-insurance cases, he wrote, where government evaluates an applicant’s individual eligibility for benefits. And “even if we were inclined to breathe into Sherbert some life beyond the unemployment compensation field, we would not apply it to require exemptions from a generally applicable criminal law,” Justice Scalia wrote.

Any society that allowed a religious opt-out from legal obligations “would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them,” Justice Scalia added.

A bipartisan majority of Congress responded with the Religious Freedom Restoration Act of 1993, which specifically declared its purpose as reinstating “the compelling interest test as set forth in Sherbert v. Verner” for both state and federal law.

The religious-freedom act got a chilly reception when the Supreme Court heard a challenge to it in 1997. The justices struck down the provisions pertaining to state law, finding Congress had no authority to impose on states protection for religious expression that exceeds that provided by the First Amendment.

But the court left on the books provisions carving out religious exemptions to federal law, which still must meet the balancing test Justice Brennan spelled out. (from


For details on the case, go to:

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