Hobby Lobby prevailed against Health and Human Services in the Supreme Court’s last Monday, but champions of the decision should realize the precariousness of the victory. No one knows what is in the offing and, as to be expected, disagreement abounds about how to interpret the future implications of SCOTUS’s decision.
Given all these uncertainties, it is necessary—forthwith–for all current plaintiffs, with leadership from Hobby Lobby, to consolidate gains already achieved.
SCOTUS issued its ruling 5-4, a very close shave. The Court ruled that closely-held for-profit corporations have standing to sue under the Restoration of Freedom of Religion Act (RFRA) and that the contraceptive/abortifacient and sterilization requirements of the HHS mandate as applied to closely-held for-profit corporations violated RFRA. But a change in the ideological composition of the court might affect the outcome of future suits and doom the religious liberty aspirations of both for profits and non-profits. Also, RFRA can be amended or rescinded by a future Congress.
The Obama administration may, at an opportune moment in the news cycle, quietly extend to commercial entities the same “accommodation” it has given non-profits. But this accommodation is no solution.
In the shorter term, the Obama administration may, at an opportune moment in the news cycle, quietly extend to commercial entities the same “accommodation” it has given non-profits. But this accommodation is no solution. Many non-profits have filed suit claiming the government accommodation makes them a necessary instrumental cause in the payment and provision of contraception, abortion and sterilization.
Of course, the administration may decide it is too politically risky to issue new regulations extending its non-profit “accommodation” to businesses. Or it may decide to back down, given (for example) last week’s rulings on Wheaton College and EWTN.
On the other hand, this administration has relentlessly pursued its goal of promoting universal access and public funding of contraceptives, including abortive ones. In the Attorney General argued that the four methods of contraception singled out by Hobby Lobby as objectionable were not abortive. In doing so, it relied on federal and state laws that pseudo-scientifically define the moment of conception as the moment of implantation in the mother’s uterus. Apparently the Attorney General does not regard drugs or an IUD that terminates the life of an embryo after fertilization as abortifacient. Hobby Lobby considers these abortive, whereas the government considers them merely contraceptive.
The administration abhors a vacuum when it comes to finding mechanisms providing universal access to contraception, sterilization, and abortion. When pressed by Justice Kennedy in , the Attorney General admitted that according to the government’s line of reasoning a for-profit corporation could be forced, in principle, to pay for abortion but not have standing to sue under the First Amendment or the Religious Freedom Restoration Act (RFRA).
Hobby Lobby – how it should use its moral authority
Given all these uncertainties, it is necessary for all current plaintiffs –including Hobby Lobby—immediately to consolidate gains already achieved. It is not worth taking any risks in this environment—nor, for that matter, to assume “peace in our time” at any point in the struggle against government efforts to restrict religious liberty.
And, regardless what actions HHS takes at this point, there is every reason to impress on the American public the serious resolve of plaintiffs in ongoing suits, something of great value for future battles, on other fronts.
Would Hobby Lobby accede to any new accommodation the government issues?
Hobby Lobby has a special public responsibility to consolidate wins. It must secure the beachhead it achieved in the SCOTUS decision. After all, Hobby Lobby’s name is now associated in the public imagination (as a result of the tremendous news coverage its win generated) with principled resistance to the HHS mandate.
Would Hobby Lobby accede to any new accommodation the government issues that many believe would still make them morally complicit in providing contraceptive and abortive drugs?
There are some indications it would. Perhaps the most salient indication is Hobby Lobby’s comments during oral arguments on the administration’s morally compromised accommodation for non-profit corporations, which Justice Ginsburg characterized in her dissent as “noncommittal.” When asked by Justice Sotomayor if the accommodation would be acceptable to them, counsel for Hobby Lobby said, “We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that.”
Justice Alito answered this objection saying: “We do not decide today whether an approach of this type [the government accommodation] complies with RFRA for purposes of all religious claims” because “[t]he less restrictive approach we describe accommodates the religious beliefs asserted in these cases, and that is the only question we are permitted to address.”
In his concurring arguments, Justice Kennedy makes the point that the government’s accommodation “does not [appear to] impinge on the plaintiffs’ religious beliefs” in so far as “the plaintiffs have not criticized with a specific objection [the government’s accommodation] that has been considered in detail by the courts in this litigation, and [the government’s accommodation] is less restrictive than the means challenged by the plaintiffs in these cases.”
Moreover, Hobby Lobby's counsel during oral argument seemed to indicate a willingness to stand in solidarity with the Little Sisters of the Poor who are seeking a “least restrictive” means: “The whole debate is about how much complicity there has to be from the employer in order to trigger that [insurance] coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn’t be a problem with that.”
SCOTUS had already the Little Sisters of the Poor a stay order pending appeal allowing the Little Sisters of the Poor to opt out of self-certification of the government accommodation.
After deciding in favor of Hobby Lobby, SCOTUS Wheaton College an injunction so that it “need not use the form prescribed by the Government, EBSA Form 700, and need not send copies to health insurance issuers or third party administrators.” This applies to Wheaton, but the injunction suggests that all a religious non-profit need do is inform HHS’s Secretary in writing that it has religious objections to providing coverage for contraception.
Perhaps this is the accommodation SCOTUS has in mind for religious non-profit corporations when it finally rules on the merits of those who object to the government’s accommodation. But first it would need to resolve a legal dilemma in its Wheaton College decision.
The Wheaton injunction – poised on the horns of a legal dilemma
Horn One: Marty Lederman that if an informal notice directly to the HHS acts as Wheaton would wish, the informal notice will have no further legal effect. It will not trigger or serve as a legally binding directive to Wheaton’s third party administrator (TPA) to provide payment for contraceptive/abortive services. Justice Sotomayor noted in her dissent, however, that if “Wheaton’s third-party administrator bears the legal obligation to provide contraceptive coverage only upon receipt of a valid self-certification,” then the injunction granted to Wheaton “risks depriving hundreds of Wheaton’s employees and students of the legal entitlement to contraceptive coverage.”
Horn Two: On the other hand, as the Sycamore Trust warns, perhaps the effect of Wheaton’s informal written notice sent directly to the HHS Secretary will be treated the same as a formal HHS self-certification and serve as a designation of a third party administrator to step into the shoes of the objecting employer as a “plan administrator” and pay for an employee’s contraceptive/abortive services. In which case, Wheaton is no better off with an informal written notice sent to the HHS than self-certifying formally with the form prescribed by the HHS to be sent to their third party administrator.
A Solution: Lederman suggests SCOTUS could interpret RFRA as providing the government authority to require third party administrators to pay for contraceptive/abortive services at no cost to the administrator, without Wheaton’s informal notice serving to designate the third party administrator as the plan administrator under the Affordable Health Care Act.
An Objection: Justice Sotomayor objects to such a solution because it would require too much work for the HHS: “Presumably the Court intends to leave the agency the task of forwarding whatever notification it receives to the respective insurer or third party administrator. But the Court does not even require the religious nonprofit to identify its third-party administrator, and it neglects to explain how HHS is to identify that entity. … Is HHS to undertake the daunting – if not impossible – task of creating a database that tracks every employer’s insurer or third-party administrator nationwide?”
Hobby Lobby should let it be known that, after further consideration, it is unwilling to accept the current non-profit accommodation should the government decide to extend it to for-profit corporations. It should also signal its willingness to initiate a new lawsuit to defend itself from having to abide by any accommodation that makes it complicit in violating the common good of society by directly or instrumentally facilitating payment for abortion services for its employees.
A strong stand now by Hobby Lobby against compliance with future accommodation would prove beneficial in many ways.
It would help solidify the public’s perception of the overall resolve of businesses with religious objections. It would provide a strong role model for other sympathetic but tepid businesses. The more businesses involved, the greater the economic power bloc present to reinforce religious liberty in general. Plus it would underscore Hobby Lobby’s objection to the administration’s desire to proliferate abortive contraceptives. Finally, it would provide counterpoint to those entities that unfortunately already accept the existing non-profit accommodation.
Moral questions of cooperation
Some persons sympathetic to the cause of religious liberty may counter-argue: Hobby Lobby has its own religious tradition that advises on the admittedly complex issues of cooperation with evil involved here. And friends of religious liberty—precisely because they support the latter– should respect the conclusions of the faith tradition of Hobby Lobby’s owners.
Below we first provide some comments from a Catholic perspective but then suggest that all Christians have good reason to adopt this stance, if it is superogatory—goes beyond the strict call of duty– according to their tradition.
A treatment of the problems associated with cooperating in the evil actions of another person has been presented in the “Brief of 67 Catholic Theologians and Ethicists as Amici Curiae in Support of Appellants and Requesting Reversal,” submitted to the U.S. Court of Appeals for the Tenth Circuit, with respect to the case of the Little Sisters of the Poor Home for the Aged. (See Michael Pakaluk’s comments in “Does the HHS Mandate Compel Material or Formal Cooperation?”)
Justice Sotomayor fails to note basic distinctions between material and formal cooperation in evil. For instance, she quotes at length the Seventh Circuit opinion that makes a false analogy between a conscientious objector to the HHS contraception/abortifacient mandate and a Quaker who invokes his religiously motivated passivism as grounds for an exemption from the Draft. She accepts the argument that it is quite alright for the Quaker to give notice of his religious objection and to be excused from having to enlist, but regards it as altogether unreasonable for him to think his religious freedom is impinged if the government sends someone else to fight in his stead.
The analogy mischaracterizes the position of those who, like the Little Sisters of the Poor and Wheaton College, seem willing to send the government an informal notice of their conscientious objection to paying for contraceptive/abortive services. Unlike the analogy to the hypothetical Quaker in Sotomayor’s example, the Little Sisters or Wheaton College do not regard it as even remote material cooperation in the evil of contraception, sterilization or abortion if the government, without their direct or indirect involvement, goes out on its own and recruits or drafts some willing third party to cover the costs of providing those morally objectionable services to its employees.
A real analogy would be this: The government insists that before it grants the Quaker conscientious objector status he must do two things: 1) Bring written notice of his conscientious religious objection; and 2) bring with him to the recruiting station his surrogate “stand-in” who will go to war for him. Similarly, the government insists those who object to the HHS reproductive health services use a form that does not simply say, “Please excuse me from having to participate in the payment of reproductive health services due to my sincerely held religious convictions” but that also has the legal effect of making a referral to their designated “stand-in” third-party administrator so that their TPA may go make payment for the objectionable reproductive services in his stead.
The real analogy shows that the government is forcing conscientious objectors to its accommodation to make a referral for payment of abortifacient drugs. However anyone who makes a referral for an abortion or for the payment of an abortion formally intends, despite any reservations or ulterior motives they may have, what the abortion provider intends. The referring party under the government’s accommodation is both a formal cooperator and a proximate material cooperator, an accessory before the fact who, although absent from the scene of the crime, aids and abets the woman seeking an abortion, intending what she intends by making a referral for payment thereby facilitating her abortion.
For instance, not long ago German Catholic bishops gave permission for Catholic counselors to sign a certificate that a German woman might procure a legal abortion. They did so in the hope that the Catholic counselors would dissuade some women from having an abortion. Despite this good motive John Paul II . The brief by the 67 theologians and ethicists notes: “In 1998, Pope John Paul II authored a letter to the German bishops, calling on them to take care that … ecclesiastical institutions do not become co-responsible for the killing of innocent children by issuing such counseling certificates that authorized women to receive abortions.
The bottom line
When faced with a choice to refer for an abortion or payment for abortion or go out of business, shouldn’t we all answer – believers of all stripes – “it is better that we obey God than men”? (Acts 5:29)
Whether or not the owners of Hobby Lobby accept the analysis of cooperation with evil offered in that brief, it may well find the argument about scandal compelling.
Hobby Lobby and other likeminded entities should now signal unwillingness to participate in any morally compromised accommodation the administration may extend to businesses.
Regardless the moral framework of analysis appellants such as Hobby Lobby have brought to their lawsuits, there is a strong argument for coordination—by all parties, regardless of religious belief—that transcends the particularities of each faith-tradition’s views on the licitness of cooperation in evil under normal conditions. We do not live in normal times; the First Amendment rights of religious believers are now at risk in the U.S.
More generally, any party that would normally regard a strong stand against the government as a matter of superogation—again, that is, something above and beyond the call of duty—should still consider taking such a stand.
In sum, Hobby Lobby and other likeminded entities should now signal unwillingness to participate in any morally compromised accommodation the administration may extend to businesses.
All entities, whether profit or non-profit, should consider introducing into their mission statements an explicit disavowal of participation in government’s current “accommodations.”
The Manhattan Declaration drafted and signed by Orthodox, Catholic, and Evangelical Christians suggests civil disobedience may be our last option when the tension between the laws of the state and God’s law become unbearable: “Through the centuries, Christianity has taught that civil disobedience is not only permitted, but sometimes required. … [Therefore] we will not comply with any edict that purports to compel our institutions to participate in abortion…” (See also Thomas Aquinas, S.T. I,II, Q. 96, A. 4). Let’s work together and pray that it doesn’t come to such an impasse and that SCOTUS will fashion a way out of this political contest, so that all Americans may live together in peace without moral compromise.
Pro-life and pro-natural family advocates of religious liberty are all in this, all together. They should harbor no illusions about the issues at stake. For, if the government establishes a legal precedent under the Affordable Care Act to force its citizen to pay for contraception, sterilization, and abortion for compelling state reasons despite their sincerely held religious convictions, then what is to prevent the government from forcing its citizens to submit to these practices for compelling state reasons? Justice Goldberg warned in Griswold v. Connecticut: “Surely the Government, absent a showing of a compelling subordinate state interest, could not decree that all husbands and wives must be sterilized after two children have been born to them.”
United we stand, divided we fall.
Brian Scarnecchia teaches jurisprudence and moral foundations of the law at Ave Maria Law School and is on the Franciscan University of Steubenville faculty, where he has chaired Franciscan’s Department of Humanities and Catholic Social Thought and directed the University’s Human Life Studies and Legal Studies programs. He is the founding president of International Solidarity and Human Rights Institute.
Brian Simboli, an independent scholar, does popular and scholarly writing. His writing includes articles for Lifenews, Public Discourse, American Spectator, Crisis, First Things, and Washington Times. He graduated Phi Beta Kappa from Swarthmore College and received a PhD in philosophy from Notre Dame and an economics masters from Lehigh.