Obamacare Contraception/Abortion Services Mandate Conestoga Wood Specialties Corp. v. Sebelius U.S. Supreme Court Amicus Brief

Michael Harless Constitutional Law, U. S. Supreme Court

The story is told of a grizzled Master Sargent who, reflecting on his years of service, said: “When I joined up, homosexuality was prohibited; now it’s tolerated; and I darn sure am getting out before it’s mandatory.” So it is with respect to homosexual and abortion rights. First, the goal is said to be tolerance. Then, governmental approval and support. Lastly, any pretense of tolerance disappears, and the coercive force of government is used to eliminate any vestige of opposition. The Obamacare contraception/abortion mandate demonstrates that our nation is at the end of phase two, moving into phase three.

On January 28, 2014, our firm filed in the U.S. Supreme Court an amicus brief in support of Conestoga Wood Specialties Corp., a Mennonite family-owned business located in Lancaster County, Pennsylvania. The company has been ordered by the Secretary of Health and Human Services to purchase health insurance to cover their employees that pays for contraceptive services, including “the full-range of FDA-approved contraceptive methods and patient education and counseling for women with reproductive capacity.”

While Obamacare uses the term contraceptive, that term has undergone a dramatic shift in meaning over the past 50 years. In the array of what are called “contraceptives” are true abortifacients — drugs and devices that induce a miscarriage or an abortion, and the death of an embryo.

Objecting on the ground that the mandate forces them to buy insurance that permits and facilitates abortion to which they object on religious grounds, the Hahn family who own Conestoga, sought injunctive relief in a federal district court, claiming that the mandate violated their rights under the Religious Freedom Restoration Act (“RFRA”) and the First Amendment guarantee of the free exercise of religion.

The district court denied relief, and the court of appeals affirmed. The Supreme Court granted the Hahn family’s petition for review, and the case is pending with a decision expected by the end of June, 2014.

In an introductory Statement our brief reminds the Court that the contraceptive mandate does not appear in the Affordable Care Act enacted by Congress and signed by the President. The mandate was not even developed by the Department of Heath and Human Services, or any other agency responsible to he President. Instead, it is the product of a Committee of 16 experts appointed by the Institute of Medicine, a nongovernment agency that is not accountable to the people or their elected representatives.

In the opinion of this Committee of experts, the contraceptive mandate is required because a woman’s “well-being” consists of a life of recreational sexual activity without risk of an unplanned pregnancy, and it is this opinion that HHS has made into law.

Our brief supports the Hahn family claim that the mandate violates their rights under the free exercise clause of the First Amendment to the United States Constitution. Unlike the Hahn family brief which relies upon court precedents supporting religious tolerance, our brief rests upon the original First Amendment text that secures freedom of religion. According to the cases that apply the religious tolerance doctrine, a person’s conscience may be overridden by laws that serve a compelling government interest. Under the First Amendment freedom of religion a person’s conscience cannot be violated no matter how “compelling” the government’s interest may be.

The original understanding of “religion,” as it appears in the First Amendment, appeared earlier in the 1776 Virginia Declaration of Rights. Unlike the First Amendment the Virginia Declaration expressly defines religion as a duty owed to the Creator which is enforceable only by reason, not by force. In a statute passed in 1785 by the Virginia General Assembly, the preamble declared that it would be a violation of the free exercise of religion if a law compelled a person to promote an opinion with which he disagreed. Our brief applies this principle to the contraceptive services mandate which compels the Hahn family business to promote a government program of education and counseling encouraging women to use abortion-inducing contraceptives to reduce the risk of “unwanted pregnancies.”

The Obamacare law is based upon an unproved presumption that a woman’s “well-being” depends upon having as wide an array of contraceptive methods, including abortifacients, as is made available by the FDA, so that she can be sexually active without risking an unplanned pregnancy. The Hahn family, however, does not share the Government’s materialistic view of womanhood, and that the Government has no jurisdiction to define what it means to be a healthy woman.

Finally our brief reminds the Court that forbearance is a Christian virtue and that the contraceptive services mandate prevents the Hahn family from practicing that virtue by mandating complicity in what they believe to be the sin of abortion in violation of the Hahn family’s statement of faith in the sanctity of human life, supporting that position with quotations from the Holy Bible.

In summary our brief maintains that according to the original meaning of the free exercise of religion, the federal government is prohibited from enforce the contraceptive mandate because it prohibits the Hahn family from performing their duties to their Creator according to the dictates of conscience.

This amicus brief was our fourth amicus curiae brief filed thus far against Obamacare in its various manifestations.

Our brief was filed on behalf of Eberle Communications Group, Inc., D&D Unlimited Inc., Joyce Meyer Ministries, Southwest Radio Bible Ministry, Daniel Chapter One, U.S. Justice Foundation, Virginia Delegate Bob Marshall, Institute on the Constitution, Lincoln Institute for Research and Education, Abraham Lincoln Foundation, Conservative Legal Defense and Education Fund, and Policy Analysis Center.

Link to brief