Hobby Lobby, a craft company created and owned by a Christian family, is arguing in the Supreme Court that its First Amendment rights have been violated by the government requirement to provide insurance with comprehensive contraceptive coverage.
This case is a response to the Affordable Care Act of 2010, which mandates all people and employers purchase acceptable insurance policies containing a certain threshold of requirements, including contraceptive coverage.
The Religious Freedom Restoration Act, passed in 1990, defines the individual’s religious conscience rights under the First Amendment. The act states that the federal government cannot make stipulations which are unduly burdensome for an individual or a company. Additionally, the government must choose the least restrictive means to accomplish its goal.
The Supreme Court heard opening arguments in late March. It must decide whether an undue burden has been placed on Hobby Lobby by depriving the company of its religious conscience rights. Hobby Lobby’s case is that the government did not choose the least restrictive means, placing an undue burden on the owner’s religious conscience rights.
History and law professor Marc Clauson said he believes there is enough precedent in previous Supreme Court cases to allow a company to argue that their religious rights have been violated.
Companies have several options to avoid providing contraceptives to employees. They can pay a penalty to avoid providing government insurance, but Hobby Lobby argues that this is a burden on the company.
“The key here is going to be what the Supreme Court considers to be ‘burdensome,’” Clauson said. “They are going to be afraid of opening up the floodgates to further litigation down the road.”
Clauson said there is precedent that the government has vested interest in issues such as vaccinations and taxes. Government legal representatives say if they allow Hobby Lobby to claim religious conscience rights, it could be a slippery slope. Others may do the same and not fulfill other mandates of the health care law.
“It is a potentially problematic issue, but I think the court has developed enough standards at this point that they are able to discern what an interest of the state is truly and what’s not,” Clauson said. “They have done a reasonable job of circumscribing the limits and I don’t think this case would really have a big effect on the courts in trying to do that. If anything, I think it would help clarify where the limits of religious freedom are, which I think we could use more of.”
Hobby Lobby does not want to provide insurance coverage for the contraceptives it believes have the potential to be abortifacients, or drugs that terminate a pregnancy through abortion, according to an interview Hobby Lobby founder David Green had with Forbes Magazine.
“If they are abortifacients, I do not think that individuals or companies should be required to directly or indirectly support the payment for those,” Clauson said.
Center for bioethics director Dennis Sullivan said he has thoroughly studied whether the contraceptives in question are abortifacients.
Though birth control pills are not the contraceptive in question, Sullivan, who is a retired general surgeon, said that there is no solid scientific evidence to prove that hormonal contraception methods ever act as abortifacients. The biggest proof is that many women have healthy pregnancies while on hormonal birth control because it is not completely effective.
“Oral contraceptives are not abortive,” said Sullivan. “That ship has sailed ethically.”
Emergency contraception, used after unprotected sex to prevent pregnancy, is more controversial, and is the main focus of the Supreme Court case involving Hobby Lobby. It includes methods such as Plan B, an over-the-counter emergency contraceptive, Ella, a prescription-only drug, and intrauterine devices (IUDs) inserted after intercourse.
“It might be a little inconvenient to point out to Hobby Lobby right now that Plan B is not an abortifacient,” said Sullivan. “It is a politically-biased time. The argument is going to come that the product label says that it is an abortifacient, but we must remember that drug companies have to cover all of their bases, not by the virtue of any evidence.”
Sullivan said that IUDs potentially have abortive properties. These mechanical devices, which irritate the lining of the uterus, may interfere with ovum implantation.
Ella is the same drug used in some chemically induced abortions, just in a smaller dose. When given in lower doses, it may not be abortive, but Sullivan said he still worries about the effects of this drug.
“In a higher dose, you can abort with it until the end of the first trimester,” Sullivan said. “As a pro-life ethicist, you can see why I would be much more concerned about Ella than Plan B.”
Sullivan holds the conception view of human personhood. When sperm meets egg, it is called fertilization, or conception. In this view, a one-celled embryo called a zygote is a person.
“I believe that an embryo has the same moral status as you and I,” Sullivan said. “I would want to be known as holding to that view — the sanctity of human life from conception until death.”
Sullivan said rights of conscience should not be based on feelings, but rather on rights. The issue is not whether you feel uncomfortable with something, but rather whether you have a reasonable concern that you are going to do something immoral.
“Rather than jumping in and weighing in, a truly informed citizenry will explore both the political and ethical dimensions of every issue,” Sullivan said.
Clauson said the court will likely be divided on the issue, with four votes on each side and one swing vote. This vote will likely belong to Justice Kennedy. It is hard to tell what Kennedy’s decision will be because he has been equally critical of both sides.
The results of Sebelius vs. Hobby Lobby will likely be issued sometime in mid-June.
Laura Jani is a junior nursing major and a reporter for Cedars. She enjoys a freshly brewed cup of coffee, learning the Spanish language and traveling to new destinations.