- - Tuesday, March 25, 2014

ANALYSIS/OPINION:

The U.S. Supreme Court heard two of the most important and contentious religious freedom cases of this term on Tuesday. The question the court will decide is whether families in business are free to honor their faith at work or government is empowered to punish family businesses for refusing to submit to its coercive mandates.

The cases involve Obamacare’s mandate that requires employers to provide insurance coverage for abortion-inducing drugs, sterilization and contraception at no cost to the employee. There is currently only a narrow religious exemption for churches and an illusory “accommodation” for some religious nonprofits.

Why can’t family business owners — Conestoga Wood Specialties and Hobby Lobby in these cases — have the same freedom from government coercion as other exempt parties? Because the government says they can’t.

Not only is the government arbitrarily selective in how it doles out exemptions, it’s also arbitrary in its argument that business owners can’t exercise religious freedom. During the oral arguments, Chief Justice John Roberts honed in on that point: “Every court of appeal to have looked at the situation has held that corporations can bring racial discrimination claims as corporations. Now, does the government have a position on whether corporations have a race?” The government’s answer through Solicitor General Donald Verrilli was, “Yes. We think those are correct and that this situation is different.”

How is it different, though, other than the fact that race is something the Obama administration is willing to respect, but religion is not? The solicitor general wouldn’t say.

What is the price for failure to comply with the government’s edict? Staggering fines — from tens of millions to hundreds of millions of dollars — which would cripple any business. Or they can instead be fined less (“mere” millions) if they decide to harm their employees by dropping all health plans. No family business should have to face such a choice in America.

What does this option say about the mandate and the administration’s supposed interest in forcing employers to pay? If it is vitally important for employers to pay for their employees’ abortion-inducing drugs, why is there a lower fine associated with dropping all coverage than with maintaining insurance plans minus these few items? Why do smaller employers face no fine for dropping coverage?

If people lack insurance, they can turn to the government’s exchanges. (That’s going well, isn’t it?) Why can’t the government use the exchanges or many existing programs to provide these objectionable items without bullying family businesses into getting involved?

There is more. If forcing employers to pay was indeed essential, why has the government already offered grandfathered exemptions to companies that employ tens of millions of women, allowing those companies to avoid the mandate?

The government refers to this grandfathering as a perpetual “right” as long as there are no major changes to coverage. Why allow businesses to opt out on such a massive scale for secular and political reasons, but not for religious and constitutional reasons? Are we to believe that the system can tolerate these tens of millions of exemptions to the mandate but not a miniscule percentage more for a small number of family businesses?

Since the administration acknowledges the mandate’s harm to religious freedom by providing the church exemption, why not include other conscientious mandate objectors? That is what Congress required in the Religious Freedom Restoration Act: exemptions for “any” exercise of religion, not just the “government-approved” sort.

Keep in mind that Congress did not even require this coverage and allowed for broad exemptions. An administrative agency concocted the unjust and unnecessary mandate. Justice Anthony Kennedy took note of that during oral argument in questioning the government: “Now, what kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined ? [W]hen we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one ?”

Instead of Congress, the agency’s mandate itself created the “right” to force employers to pay for abortion-inducing drugs and the supposed “harm” arising from the lack of this particular freebie. This is not the enduring “right” that opposition activists are pretending it is. No one has ever been harmed because an employer didn’t pay for these drugs. No one seems to have trouble obtaining them.

Planned Parenthood president Cecile Richards unwittingly proved that point by claiming recently that 99 percent of women use the drugs covered under the mandate. It doesn’t seem like a crisis at all, much less one requiring massive government intrusion into the lives of families in business. Since nearly everyone can already get the drugs — and most of them are fairly inexpensive — why is this issue even before the Supreme Court?

Bottom line: There is a greater harm not only to women employees, but to all employees, if businesses are forced to choose between heavy penalties or submitting to unlawful government demands. If the government’s mandate is allowed to stand, people might be out of a job, have no insurance coverage and have less or no money to pay for these items should they choose to buy them.

In short, everyone loses if the government wins.

David Cortman is senior counsel at Alliance Defending Freedom, which represents the Hahn family and Conestoga Wood Specialties in their Supreme Court challenge to the Obamacare abortion-drug mandate.

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