By Bob Allen
The billionaire owners of Hobby Lobby’s religious objection to the use of certain types of birth control doesn’t entitle them to deny the company’s 22,000 employees insurance coverage required by federal law, Americans United for Separation of Church and State argued in a legal brief filed March 22 in the 10th U.S. Circuit Court of Appeals.
The friend-of-the-court brief — one of four filed recently in lawsuits challenging the Patient Protection and Affordable Care Act, also known as Obamacare – states that the five members of the Green family who own the national chain of arts-and-crafts stores are evangelical Christians who claim that requiring them to pay for employee insurance coverage that includes “morning-after” birth control pills violates their religious beliefs.
AU, a public-interest organization founded in 1947 to uphold the free exercise of religion and the separation of church and state, says it supports such exemptions to generally applied laws in order to “reasonably accommodate” religious practice, but not those that “impose harm on innocent third parties.”
For that reason, the brief argues, Hobby Lobby should not be allowed to opt out of a requirement to provide insurance coverage for preventive services without cost sharing that include all contraceptive methods approved by the FDA.
The Affordable Care Act includes a conscience clause that allows nonprofit religious employers like faith-based universities and hospitals to opt out of the contraceptive mandate. Their employees would instead receive a stand-alone private insurance policy to provide contraceptive coverage at no cost. Because Hobby Lobby is for-profit, it does not qualify for the same accommodation.
As a secular company, the brief contends, many Hobby Lobby employees do not share the owners’ beliefs. “[The] Plaintiffs have every right to refrain from using certain types of contraception and to attempt to persuade others to do the same,” it says. “But once they enter the secular market for labor to staff their secular, for-profit corporations, they may not force their religious choices on their employees.”
The filing says allowing Hobby Lobby an exemption from the coverage mandate could open the door to other employers denying coverage for other medical treatments ranging from blood transfusions to psychiatric care.
“A Jehovah’s Witness could choose to exclude blood transfusions from his corporation’s health-insurance coverage,” the brief argues. “Catholic-owned corporations could deprive their employees of coverage for end-of-life hospice care and for medically necessary hysterectomies. Scientologist-owned corporations could refuse to offer their employees coverage for antidepressants or emergency psychiatric treatment.”
Corporations owned by certain Muslims, Jews or Hindus, AU says, could even refuse to provide coverage for pills coated with gelatin, because their faith prohibits the consumption of byproducts made from pork or beef.
The Greens and Hobby Lobby are claiming legal rights under the First Amendment and the Religious Freedom Restoration Act, a federal law aimed at preventing laws that substantially burden a person’s free exercise of religion.
Americans United claims they have failed to prove the burden on their rights is “substantial,” a key requirement in the application of RFRA. They say any burden on the plaintiffs is only “incidental and attenuated,” because the law imposes a regulation on the business, not the individual owners or officers who hold personal religious beliefs about contraception.
David Green, a member of Council Road Baptist Church in Bethany, Okla., and patriarch of the Hobby Lobby clan, was profiled in an October 2012 Forbes feature about the $3 billion arts-and-crafts chain described as “a Christian company in every sense.”
“It runs ads on Christmas and Easter in the local paper of each town where there’s a store, often asserting the religious foundation of America,” the article said. “Stores are closed on Sundays, forgoing revenue to give employees time to worship. The company keeps four chaplains on the payroll and offers a free health clinic for staff at the headquarters — although not for everything; it’s suing the federal government to stop the mandate to cover emergency contraception through health insurance.”
Americans United says giving a “conscience” exemption to corporations like Hobby Lobby would result in thousands of Americans being denied birth-control coverage.
“Conservative religious interest groups are waging an all-out legal war on Americans’ access to birth control,” said Barry Lynn, Americans United executive director. “We cannot let them win this battle. No corporation should ever be able to tell its employees that they can’t have access to contraceptive coverage simply because it offends the boss’ religious preference.”
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