Right-Wing Media Mislead On The “Contraception Mandate” And Religious Freedom

Right-wing media have mischaracterized the Affordable Care Act (ACA) provision that requires certain preventive health care services be included in employer-provided health insurance at no cost as a violation of the religious freedoms of corporations who object to contraception. In reality, this mandate, currently before the Supreme Court, accommodates religious employers' First Amendment rights without allowing secular, for-profit corporations to skirt federal law, and there is no legal precedent that gives corporations the right to exercise religious freedom.

Right-Wing Media Dubiously Call A Chain Store's  Legal Challenge To The “Contraception Mandate” A Defense Of Religious Liberty

The American Spectator: The Hobby Lobby Case “Isn't Even About Contraception,” It's About Religious Liberty. The Spectator claimed requiring  Hobby Lobby, a chain store at the center of a legal battle with the Department of Human and Human Services (HHS) for refusing to comply with the ACA, to offer employer-sponsored health insurance that covers preventive services, including contraception, would turn owners into “second class citizens”:

[The Obama administration] was forced to file an appeal with the high court because, last June, Hobby Lobby dealt the government's lawyers a resounding defeat in a federal appeals court. To understand how, one must first understand what this lawsuit is really about. It does not concern, as the Los Angeles Times suggests, whether a corporation can have religious beliefs. The case isn't even about contraception -- Hobby Lobby's employee insurance plans cover birth control. Hobby Lobby v. Sebelius is about religious liberty.          


The HHS mandate would, of course, force Hobby Lobby to provide its employees with insurance that covers abortifacients like the “morning-after pill,” despite the strong religious objections to abortion held by its owners, David Green and his family. The First Amendment question arises due to the administration's perverse position that Hobby Lobby's status as a for-profit corporation deprives the Greens of their right to run the business according to the tenets of their religion. Thus they cannot refuse to provide insurance that, in effect, pays for abortions. It was this weird logic that the appeals court rejected. [The American Spectator, 9/23/13]

Townhall.com: The Supreme Court Will Consider “Obama's Unconstitutional Mandate” That Requires Private Companies To “Provide Abortion-Inducing Drugs And Contraceptives.” Townhall promoted the Hobby Lobby CEO's assertion that he can refuse to provide required health insurance to his employees because his “company was founded on Christian principles”:

The question the Court faces is whether or not, under the Obamacare HHS mandate, private companies must provide abortion-inducing drugs and contraceptives to employees despite the company's religious objections.

Two key laws are up for judicial interpretation in this case.

One of these statutes is the glaringly-obvious First Amendment “free exercise clause” which demands Congress make no law prohibiting the free exercise of religion.

The second is the 1993 Religious Freedom Restoration Act which states the “government shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.” Exceptions apply when the rule has a compelling government interest and is being furthered under the least restrictive means.

Hobby Lobby CEO and Founder David Green has made it explicitly clear that the company was founded on Christian principles and has been committed to helping families “celebrate life” for over 40 years[.] [Townhall.com, 9/20/13]

National Review Online: The Obama Administration Is “Pretending” To Accommodate Religious Employers. National Review Online's Kathryn Jean Lopez framed the lawsuit brought by Hobby Lobby as a necessary fight because “Christianity is a seven-day a week matter, it's a call to an integrated life, not something that can be confined”:

The biggest judicial victory yet in the cases of religious objectors to Obamacare's Department of Health and Human Services abortion-drug, contraception, sterilization mandate has come today in a ruling for Hobby Lobby, allowing the case to go on without the imminent threat of fines.

Although consistently pretending to have accommodated religious-organizations concerns, the White House has never voiced an interest in the religious-liberty rights of business owners; and this latest ruling, is a positive sign that there are jurists who can see through the secularist ideology to protect religious freedom.  [National Review Online, 6/27/13]

In Fact, The “Contraception Mandate” Was Repeatedly Modified To Strengthen Religious Rights Protections, And Does Not Cover “Abortifacients”

Kaiser Health News: Numerous Exemptions Are Allowed For Various Religious-Affiliated Employers. As reported by KHN, in addition to the original accomodations in the law, the administration has repeatedly broadened the exemption for employers who object to “providing contraceptive coverage”:

Officials announced last year that under the preventive care provisions of the federal health overhaul, contraception should be provided without charge to women, although it exempted houses of worship, like churches. But the guarantee of coverage applied to such religious-affiliated organizations as hospitals and colleges. The administration vowed to make sure those groups did not have to pay for that coverage. The policy sparked fierce opposition from leaders of Catholic and other religious groups, and it has led to more than 40 court challenges by other religious-affiliated groups and private employers opposed to contraception.

The new regulations call for insurers who sell the coverage to pick up the cost of the contraceptives. For the first time, it also lays out a plan for religious institutions that self-insure. In those organizations, the administrator of the plan would need to find an insurer to provide a separate policy for women in that workplace and the insurer would be compensated with a reduction in the fees it pays to the state-based marketplaces, or exchanges, being established to provide coverage to individuals and small businesses.

The new rules also guarantee that religious employers are not disqualified from the exemptions even if their work extends “beyond the inculcation of religious values” or if they hire workers of different faiths. [Kaiser Health News, 2/1/13]

National Public Radio: Contraceptives Are Not “The Same As The Abortion Drug RU-486.” As NPR reports, studies have shown that the contraceptives at issue, such as the “morning-after pill,” do not terminate pregnancy like RU-486, which “isn't considered a contraceptive and isn't covered by the new insurance requirements”:

The most heated part of the fight between the Obama administration and religious groups over new rules that require most health plans to cover contraception actually has nothing to do with birth control. It has to do with abortion.

Specifically, do emergency contraceptives interfere with a fertilized egg and cause what some consider to be abortion?

“The Health and Human Services preventive services mandate forces businesses to provide the morning-after and the week-after pills in our health insurance plans,” said David Green, founder and CEO of the arts and crafts chain Hobby Lobby, one of the firms suing over the requirements. “These abortion-causing drugs go against our faiths.”

The morning-after pill he's referring to is sold under the brand name Plan B. The week-after pill, which actually only works for five days after unprotected sex, is called ella.

Both are classified by the Food and Drug Administration as contraceptives. Neither is the same as the abortion drug RU-486, or Mifeprex. That pill isn't considered a contraceptive and isn't covered by the new insurance requirements.

The constant references to Plan B and ella as abortion-causing pills frustrates Susan Wood, a professor of health policy at George Washington University and a former assistant commissioner for women's health at the FDA.

“It is not only factually incorrect, it is downright misleading. These products are not abortifacients,” she says. “And their only connection to abortion is that they can prevent the need for one.” [NPR, 2/21/13]

Contrary To Right-Wing Media Misinformation, Hobby Lobby Is Challenging Long-Established Constitutional And Corporate Law Precedent

Constitutional Accountability Center: Corporations Are Legal Entities, Not “Living, Breathing, Individuals” With Protected Exercise Of Religion. Director of the Human Rights, Civil Rights, and Citizenship Program at CAC, David Gans, detailed that under First Amendment law, “corporations can assert some - but not all - of the constitutional rights that individuals have”: 

[C]orporations are “mere creatures of law;” they are not a part of “We the People” by whom and for whom the Constitution was written.  The Constitution never mentions corporations, and the Court's cases recognize a basic, common-sense difference between living, breathing, individuals - who think, possess a conscience, and a claim to human dignity - and artificial entities, which are created by the law for a specific purpose, such as to make running a business more efficient and lucrative.  Even Justice Kennedy, the author of Citizens United, has recognized that corporations may not invoke the Self-Incrimination Clause because the Fifth Amendment right “is an explicit natural right of a person, protecting the realm of human thought and expression.”   For some purposes, corporations lack the same rights as individuals.


[I]t is nonsensical to treat a business corporation as an actor imbued with the same rights of religious freedom as living persons.  No decision of the Supreme Court has ever recognized such an absurd claim.  Even Citizens United, which gave extensive protections to corporations under the Free Speech Clause, emphasized that electoral advocacy by corporations was protected, not because business corporations were capable of the human aspects of thought and expression, but to provide a robust debate for individual listeners. [Constitutional Accountability Center, 7/30/13]

Slate: “Not Every Regulation That Inflects Upon Your Religious Beliefs” Is A Violation Of First Amendment Law. Legal expert Dahlia Lithwick explained that courts have struck down similar challenges based on “the absolute novelty of the claims, noting that there was almost no case law suggesting that corporations can hold religious beliefs”:

The Supreme Court has long held the free exercise clause of the First Amendment to prohibit governmental regulation of religious beliefs, but a long line of cases holds that not every regulation that inflects upon your religious beliefs is unconstitutional. The Religious Freedom Restoration Act bars the federal government from imposing a “substantial burden” on anyone's “exercise of religion” unless it is “the least restrictive means of furthering [a] compelling governmental interest.” The Obama administration and the judges who have refused to grant injunctions contend that the burden here is insignificant, amounting to a few dollars borne indirectly by the employer to facilitate independent, private decisions made by their female employees. They also argue that they are promoting a compelling government interest in providing preventive health care to Americans.


In 1982, in United States v. Lee, an Amish employer refused to pay his share of Federal Insurance Contributions Act taxes on his employees, claiming that it violated his own religious belief in individual self-sufficiency. The Supreme Court said he had to pay the taxes regardless because "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees." And in a 1990 opinion written by Justice Antonin Scalia, the court held that religious groups bear a heavy burden in overcoming “a valid and neutral law of general applicability.” [Slate, 8/1/13]

Lyle Denniston: Corporations Are Set Up So Owners Can “Keep Themselves Independent From It.” Writing for the National Constitution Center's blog Constitution Daily, SCOTUSblog reporter Denniston observed that the idea that non-profit secular corporations exercising religious rights is “a new constitutional perspective” and “somewhat strange”:

Most corporations that engage in ordinary business activities are organized as secular firms; that is, they enter the marketplace to carry out commercial, not religious, endeavors. But what is perhaps more important is that business people who form corporations do so to keep themselves independent from it: one of the main advantages of the corporate form is that the owners are not targeted when their company gets sued.

Moreover, it sounds somewhat strange for a commercial entity that is considered to have an artificial legal personality, like a corporation, to “exercise” religion.


The key dispute in this context thus appears to turn on whether the faith preferences of the owners of a profit-making corporation can be transferred to the business entity so that it is not an independent entity but rather, for constitutional purposes, an alter ego. [National Constitution Center, 1/2/13]