HHS Mandate: Trying To Understand The Details

The HHS mandate row is, as it is natural, very complicated; particularly for people, like me, who live the other side of the Atlantic Ocean and can’t spend their lives looking at the details. In particular, it is difficult for a European observer to immediately grasp the two profiles of contraception and abortion.

More in particular, things are complicated in that, as I could understand it, Hobby Lobby opposed a limited number of – medicaments officially considered – contraceptives because they deem them abortifacients. Which means, if I got it right, that at least as far as they are concerned the issue is abortion, not contraception. But the issue is at the same time also religious freedom, and I understand the Supreme Court decision was limited to a limited number of medicaments which, whilst abortifacients, are officially contraceptives. Therefore, whilst Hobby Lobby can be satisfied, we aren’t (yet).

Things are more complicated for Catholic organisations than for Hobby Lobby, as – if they are Catholics in more than name only – they must oppose both contraceptive and abortifacients of all sorts. Again, from what I gather the Supreme Court examined the cases under the aspect of religious freedom, which unavoidably must apply to contraceptives as well as abortifacients. Therefore, it would appear to me, unless I got it wrong, that whilst the issue has not been explicitly decided yet, there is a fairly good chance that the Supreme Court will upheld the right of every Catholic organisation (non-profit one, or for-profit if closely held) to deny every medicament going against Catholic teaching, contraceptives as well as abortifacients.

Some of my US American readers might perhaps provide me with easy and concise explanations, or with links helping with the matter.

I have found this here and this here, and will look at them more in detail as time allows. I am interested in particular in the chances of the contraception battle for nonprofit and closely held for-profit organisations, as it seems to me that concerning certain abortifacients things should be clear enough for both for-profit and non-profit ones.

Again, I am thankful for sober, digestible guidance in the intricacies of the law and the judicial decision.



Posted on July 5, 2014, in Catholicism, Conservative Catholicism, Traditional Catholicism and tagged , , , . Bookmark the permalink. 8 Comments.

  1. U.S. lawyer, here. The case (HOBBY LOBBY) was decided under statute, not Constitution (as is typically the case by our Supreme Court). That statute, the Religious Freedom Restoration Act (RFRA), was passed by Congress in the wake of an extremely BAD decision by the same Supreme Court (the SMITH case) that federal drug laws could trump the religious freedom (“free exercise clause” of the Constitution) of certain Native Americans who used peyote in their religious rituals as long as those drug laws were “of general application” or “neutral with respect to religion” (i.e. not specifically targeted at religion). Under RFRA, a law may not be applied against a religious objector if it substantially burdens the exercise of religion (the court in HOBBY LOBBY held that it did, and further held that it wasn’t it wasn’t the within the government’s portfolio to dispute whether a violation of religion had occurred, but only whether the objection was clearly insincere and a pretext – “Repeatedly and in many different contexts, we have warned that courts must not presume to determine . . . the plausibility of a religious claim.”) UNLESS it (i) served a compelling government interest, and (ii) constituted the least restrictive means of serving that interest. This was simply a return to the standard in pre-SMITH Supreme Court cases, albeit with some additional expansion of that standard. The Obama administration argued that Hobby Lobby was a corporation, not a “person” that was entitled to protection under RFRA; that even if it were a “person” it was incapable of the protected “exercise of religion”; and that even if it were capable of exercising religion the HHS mandate met to two-part standard of the RFRA. The “big new law” made in HOBBY LOBBY was that people could exercise 1st Amendment religious rights THROUGH corporations. Of necessity, the case only applies to the facts before the court – businesses owned by a small group of family members who all agree on the point of religion being pursued – but the logic of the case could be extended to other types of “corporate exercise of religion.” This is why the American left went bonkers over the holding. (That, and the fact that reviving the “war on women” meme in an election year is seen as an advantage. Of course, the American left for years has advocated for corporate “free exercise” of leftist philosophical objectives, even when they interfere with maximizing profits.) Once it was determined that HOBBY LOBBY, as a corporation, was capable of being a legitimate “religious objector” under RFRA, the rest of the Obama administration’s case collapsed like a house of cards. The court assumed that the provision of free access to contraception advanced a “compelling government interest” (so much for “five Catholic men” supporting the Church on this issue) but determined that the government had many other ways of providing that access other than making religious objectors complicit in the government’s distribution scheme. The fact that the Affordable Care Act is riddled with exemptions for all sorts of things that are far less important than the exercise of religion was the death knell for the Obama (the Constitutional-lawyer-in-chief) position.

    • Extremely useful insight, Michael. Thank you so very much!

      A question, if I may: do you think it thinkable that bigger, non closely-held corporations may also decide (either through their board or a shareholders’ resolution of their annual general meeting) that they do not want to provide the services because they go against the deeply held religious convictions of the shareholders? Obviously, there might be here an unspoken-of question of costs, but again if the shareholders say the company should not go against their religious convictions, who is anyone to judge?


    • Atty Mike Jarman: I invite you to one day consider providing internet-anonymity/VPN services to conservative clergy. The case of the Philadelphia Five in your own state comes to mind (Christian protestors jailed and facing 40+ years for holding up protest signs at a “Gay Festival”). You’d be ideally situated to fend off warrants and subpoenas looking to unmask them. Btw, I’ve also had the idea that someone might one day provide a private forum for clergy only — geared to those who are more and more thinking about jumping over the fence and opposing Francis and his gang, as those clergy would seek to talk to others who are similarly inclined.

      Mundabor: you might like to know that Atty Chris Ferrara (of the ACLA and also Remnant TV) had commented not too long ago on Louie’s blog that he also reads your blog. The American Catholic Lawyers’ Association is notably involved up until now in defending Catholic abortion protestors.

      I suspect that Catholic bloggers will soon be coming under lawfare attacks. Groups like Public Citizen would seem highly unlikely to offer any assistance.

    • Thanks BigFred. I have read Mr Ferrara’s comment about my blog and was, needless to say, extremely proud of his generous remark; but as this blog is not about myself I did not write any blog post about it.

      In the coming years, many who insulted me and others for being anonymous might well come to see the wisdom of it, if only for this reason.


  2. From USA reader: http://www.thomasmore.org/news/the-day-after-hobby-lobby-decision-supreme-court-rules-for-another-corporation-challenging-the-hhs-mandate/

    ps,, On Independence Day the enforcers made us sing along with “The Rainbow Connection” at the D.C. national celebration. They never take a holiday.

  3. I avoid going deeply into these legal conundrums for long experience has taught me that “this way madness lies”. The lawyers taught me years ago that any decision that appears favorable is actually a ghastly disaster for our side and visa versa. Of course most of those lawyers are now dead or resident in various homes for the criminally insane, two of them right down the hall from me. You can hear them howling at night.

  4. Mr. M: “[D]o you think it thinkable that bigger, non closely-held corporations may also decide (either through their board or a shareholders’ resolution of their annual general meeting) that they do not want to provide the services because they go against the deeply held religious convictions of the shareholders?”

    As a practical matter, I doubt seriously that any large corporation (particularly a public one) will act as a “religious objector” on this or any other issue. There are a lot of reasons why corporate management would want to steer clear of these issues. Shareholders’ initiatives are usually only successful if backed by institutional investors or management, and I don’t see either happening where religion is the motive force for the initiative.

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