Yesterday, the Supreme Court ruled 5-4 in Burwell v. Hobby Lobby Stores, Inc. that if you like your God, you can keep your God, even if you run a business.
The Obama administration tried to require that health plans provided at work cover contraception and morning after pills, no matter what an employer’s religious convictions. The Green family, owners of Hobby Lobby craft stores and a chain of Christian bookstores, provide insurance but refuse to cover morning after pills such as Plan B and Ella because these drugs violate their religion.
The Obama administration insists that saving women $35 for the Ella pill outweighs protecting an employer’s religious liberty. Democratic politicians hyped this battle as Armageddon for women’s reproductive rights. Valerie Jarrett, senior adviser to the president, fanned the flames, accusing employers of “trying to take this right away from women.”
Nineteen U.S. senators and 91 members of the House of Representatives, all Democrats, filed briefs supporting President Barack Obama’s legal war against Hobby Lobby. Sens. Patty Murray and Barbara Boxer said the outcome would decide “whether a CEO’s personal beliefs can trump a woman’s right to access free or low-cost contraception under the Affordable Care Act.”
Nonsense. Women have a constitutional right to use birth control, but there is no “right” to get it at work. Nor does the Affordable Care Act guarantee that health plans cover it. Obamacare would not have passed with such a guarantee.
Section 2713 of Obamacare requires plans to cover services the U.S. Preventive Services Task Force rates as A or B. Birth control didn’t make the list. The law also gives the Department of Health and Human Services secretary — a presidential appointee — discretion to add other requirements, and Secretary Kathleen Sebelius did. (The next administration could undo that.)
Shockingly, Justice Elena Kagan declared during oral argument on March 25: “Congress has made a judgment, and Congress has given a statutory entitlement, and that entitlement is to women and includes contraceptive coverage.” Wrong, Kagan. Did you forgo reading the law, like most members of Congress?
For Justice Anthony Kennedy, the fact that Obamacare does not mandate birth control coverage was decisive. During oral argument, Kennedy said it was inconceivable Congress would allow a government agency — the Department of Health and Human Services — “the power to decide a First Amendment issue of this consequence.” The First Amendment guarantees freedom to practice religion. Who is Sebelius to negate that?
It’s the Greens who have federal law on their side — the Religious Freedom and Restoration Act, which is supposed to limit how government impinges on religious practice. This law requires government to choose the least burdensome method of achieving its goal, which in this case could mean distributing morning after pills at DMVs or post offices rather than burdening employers.
Obama’s lawyers claimed that the Greens’ freedom of worship does not extend to their incorporated business. But for the Greens, there’s more to religion than praying. They run their business according to biblical principles: closing on Sundays, refusing to haul beer even when their trucks run empty, and excluding morning after pills from the insurance coverage they offer their employees.
During oral argument, Justice Samuel Alito, who wrote the majority opinion, suggested there was nothing contradictory about religion and business. Alito asked what would happen if Congress passed a law similar to a recent Danish enactment that bars slaughtering animals while they are conscious. Would Jewish and Muslim butcher shops be allowed exemptions?
Kagan asked whether a victory for Hobby Lobby would invite more challenges to the government’s mandated benefit package. “So one religious group could opt out of this, and another religious group could opt out of that, and everything would be piecemeal, and nothing would be uniform.” Kagan apparently prefers a dismal uniformity with everyone in lockstep obeying government mandates.
Betsy McCaughey is a former lieutenant governor of New York and the author of “Beating Obamacare.”